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Wl802c 
1914 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


SELECTION  OF  CASES 

ON 

CONSTITUTIONAL  LAW. 


BY 

EUGENE  WAMBAUGH,  LL.D., 

Ul 
I.ANGDELL  PROFESSOR  OF  LAW  IN  HARVARD  UNIVERSITY. 


BOOK  I., 

INTRODUCTORY  TOPICS. 


CAMBRIDGE 

E[ARVARD  UNIVERSITY  PRESS 

1914 


T 

m 


COPYRIGHT,  1914, 
BY  EUGENE  WAMBAUGH. 


ANNOUNCEMENT. 

This  collection  is  to  be  contained  in  one  volume.  It  will  be  divided 
into  four  books,  which  may  be  obtained  separately. 

Book  I.  deals  with  introductory  topics,  beginning  with  the  distinction 
between  legislative,  executive,  and  judicial  powers,  then  passing  to  federal 
government,  in  other  words,  the  general  relation  of  State  and  Nation,  and 
concluding  with  what  may  be  called  imperial  government,  or  problems 
incident  to  the  exercise  by  the  Nation  of  governmental  functions  in  the 
District  of  Columbia,  the  territories,  and  the  insular  possessions. 

Book  II.  deals  with  miscellaneous  topics,  and  especially  with  some  of 
the  express  limitations  in  the  Constitution  of  the  United  States,  includ- 
ing the  clauses  as  to  ex  post  facto  laws  and  laws  impairing  the  obUgatiun 
of  contracts. 

Book  III.  deals  with  due  process  of  law  and  kindred  topics. 

Book  IV.  deals  principally  with  commerce. 

The  literature  is  so  vast  that  this  collection  presents  only  the  famous 
cases  and  such  of  the  others  as  may  serve  the  ordinary  purposes  of  the 
classroom.  The  reader  with  scholarly  tastes  is  expected  to  make  large 
use  of  the  celebrated  collection  which  for  twenty  years  formed  the  basis 
of  the  instruction  at  tliis  Law  School  —  Thayer's  Cases  on  Constitutional 
Law. 

In  editing  the  cases,  new  statements  have  usually  been  prepared,  and, 
save  as  otherwise  indicated,  arguments  of  counsel  have  been  omitted. 
Omissions  in  opinions  have  been  indicated  by  dots.  In  the  first  chapter 
of  Book  I.  an  attempt  has  been  made  to  reproduce  punctuation  and 
capitaUzation  exactly,  to  the  end  that  the  reader  may  ascertain  what 
importance  attaches  to  changes  in  capitalizing  Constitution,  Congress, 
and  other  words. 

The  Articles  of  Confederation  and  the  Constitution  of  the  United  States 
have  been  placed  at  the  beginning,  both  in  order  to  encourage  the  student 
to  ascertain  as  soon  as  possible  whether  the  Constitution  was  a  revision 
of  the  earUer  document,  and  also  in  order  to  aid  him  to  form  the  habit  of 
beginning  every  constitutional  investigation  by  examining  the  words, 
the  context,  and  the  origin  of  the  pertinent  provision  in  the  Constitution. 


iii 


687481 


TABLE  OF  SUBJECTS. 

FAGB 

Articles  of  Confederation ix 

Constitution  of  the  United  States xvi 


BOOK  I. 
Introductory  Topics. 

Chapter  I.  The  Distinction  between  Legislative,  Execu- 
tive, AND  Judicial  Powers 1 

Chapter  II.     Federal    Government:    The   Nation  and  the 

States 104 

Chapter  III.  The  District  of  Columbia,  the  Territories, 
the  Insular  Possessions,  and  Kindred  Topics:  or  Quasi- 
Imperial  Government 188 


TABLE  OF  CASES  IN  BOOK  I. 


PAGE 

Ableman  v.  Booth  135 

American  Insurance  Co.  v.  Can- 
ter 191 

American    Publishing    Co.     v. 

Fisher  227 

American  School  of  Magnetic 

Healing  v.  McAnnulty  82 

Binns  v.  United  States  249 

Callan  v.  Wilson  210 

Campbell  v.  Hall  16 

Cherokee  Nation  v.  Georgia  196 

Chisholm  v.  Georgia  104 

Claflin  V.  Houseman  154 

Clark'a  Case  3 

Cohens  v.  Virginia  130 

Collector  v.  Day  148 

Coyle  V.  Smith  184 

Downea  v.  Bidwell  229 

Duke  of  York's  Claim  1 

Fleming  v.  Page  201 

Foster  v.  Neilson  38 

Geofroy  v.  Rigga  215 

Hawaii  v.  Mankichi  244 

Hayburn'a  Case  22 

Hepburn  v.  Ellzey  188 

HoUingsworth  v.  Virginia  111 

Hohnes  v.  Walton  21 

Kansaa  v.  Colorado  176 

Kawananakoa  v.  Polyblank  262 

Kendall  v.  United  States  42 


PAoa 

Kilboum  v.  Thompson  72 

Kohl  V.  United  States  161 

Luther  v.  Borden  46 

McCulloch  V.  Maryland  119 

Marbury  v.  Madison  23 

Martin  v.  Hunter's  Lessee  112 

Martin  v.  Mott  33 

MiUigan,  Ex  parte  68 

Mississippi  v.  Johnson  66 

Muskrat  v.  United  States  93 

National   Bank   v.   County   of 

Yankton  207 

Neagle,  /n  re  158 

New  Orleans  v.  Winter  190 

Pacific  States  T.  &  T.  Co.  t;. 

Oregon  99 

Prize  Cases  65 

Proclamations  6 

Prohibitions  del  Roy  4 

Rassmussen  v.  United  States  254 

Rex  V.  Cutbush  14 

Ross,  In  re  222 

Santiago  v.  Nogueras  265 

Snyder  v.  Bettman  164 
South  Carolina  v.  United  States     169 

Texas  v.  White  141 

United  States  v.  Evana  90 

United  States  v.  Ju  Toy  85 

Wilson  V.  Shaw  259 

Winthrop  v.  Lechmere  7 


CASES   ON  CONSTITUTIONAL  LAW 


BOOK   I. 
INTRODUCTORY  TOPICS. 


CHAPTER  I. 


THE  DISTINCTION  BETWEEN  LEGISLATIVE, 
EXECUTIVE,  AND  JUDICIAL  POWERS.' 

THE  DUKE  OF  YORK'S  CLAIM  TO  THE  CROWN. 
House  of  Lords.     1460. 

[5  Rotuli  Parliamentorum,  375.] 

Memorand',  that  the  xvi  day  of  Octobr',  the  ixth  daye  of  this 
present  Parlement,  the  Counseili  of  the  right  high  and  mighty 
Prynce  Richard  Due  of  York,  brought  into  the  Parlement  Chambre 
a  writyng,  conteignyng  the  clayme  and  title  of  the  right,  that  the 
seid  Due  pretended  unto  the  Corones  of  Englond  and  of  Fraunce, 
and  Lordship  of  Irelond,  and  the  same  writyng  delyvered  to  the 
Right  Reverent  Fader  in  God  George  Bishop  of  Excestre,  Chaun- 
celler  of  Englond,  desiryng  hym  that  the  same  writyng  myght  be 
opened  to  the  Lordes  Spirituelx  and  Temporelx  assembled  in  this 
present  Parlement,  and  that  the  seid  Due  myght  have  brief  and 
expedient  answere  thereof  :  wheruppon  the  seid  Chaunceller 
opened  and  shewed  the  seid  desire  to  the  Lordes  Spirituelx  and 
Temporelx,  askyng  the  question  of  theym,  whither  they  wold  the 
seid  writyng  shuld  be  openly  radde  before  theym  or  noo.  To 
the  which  question  it  was  answered  and  agreed  by  all  the  seid 
Lordes:  In  asmuche  as  every  persone  high  and  lowe,  suyng  to  this 
high  Court  of  Parlement,  of  right  must  be  herd,  and  his  desire 

*  The  Constitution  of  the  United  States  contains  many  passages  more  or 
less  pertinent  to  this  topic.  See  I.  1 ;  I.  3,  clause  6;  I.  5,  clauses  1  and  2;  I.  7, 
clauses  2  and  3;  I.  8,  clauses  9  and  11-16  and  18;  I.  9,  clause  2;  II.  1,  clause 
1;  XL  2;  II.  3;  II.  4;  III.  1;  III.  2,  clauses  1  and  2;  IV.  4;  VI.  clauses  2  and 
3;  Am.  XL  — Ed. 


2  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

and  Petition  understande,  that  the  said  writyng  shuld  be  radde 
and  herd,  not  to  be  answered  without  the  Kyngs  commaundement, 
for  so  moche  as  the  mater  is  so  high,  and  of  soo  grete  wyght  and 
poyse.     Which  writyng  there  than  was  radde.  .  .  . 

And  afterward,  the  xvii  day  of  October,  the  xth  day  of  this 
present  Parlement,  the  seid  Chaunceller  shewed  and  declared  to 
the  seid  Lordes  Spirituelx  and  Temporelx  beyng  in  the  same 
Parlement,  howe  that  the  Counseill  of  the  seid  Due  of  York, 
gretely  desired  to  have  answere  of  such  writyng,  .  .  .  and  ther- 
uppon  asked  the  seid  Lordes,  what  they  thought  was  to  be  doon 
in  that  matier.  To  the  which  question  it  was  answered  and 
thought  by  all  the  seid  Lordes,  that  the  matier  was  so  high  and  of 
such  wyght,  that  it  was  not  to  any  of  the  Kynges  Subgetts  to 
enter  into  communication  therof,  withoute  his  high  commaunde- 
ment, agreement  and  assent  had  therto.  And  ferthermore,  for 
asmoch  as  the  seid  Due  desired  and  required  bref  and  undelared 
answere  of  the  seid  writyng,  and  in  eschuyng  and  avoidyng  of 
grete  and  manyfold  inconveniences  that  weren  lykly  to  ensue,  yf 
hasty  provision  of  good  answere  in  that  behalf  were  not  had,  it 
was  thought  and  agreed  by  all  the  Lordes,  that  they  all  shuld  goo 
unto  the  Kyng,  to  declare  and  open  the  seid  mater  unto  his  High- 
nes,  and  to  understond  what  his  good  grace  wuld  to  be  doon 
ferther  therin.  And  theruppon  incontynent  all  the  seid  Lordes 
Spirituelx  and  Temporelx  went  to  the  Kyngs  high  presence,  and 
therunto  opened  and  declared  the  seid  mater,  by  the  mouth  of 
his  said  Chaunceller  of  Englond.  And  the  same  matier  by  the 
.  Kynges  Highnes  herd  and  conceyved;  It  pleased  hym  to  pray 
and  commaunde  all  the  seid  Lordes,  that  they  shuld  serche  for 
to  fynde  in  asmuch  as  in  them  was,  all  such  thyngs  as  myght  be 
objecte.and  leyde  ayenst  the  cleyme  and  title  of  the  seid  Due. 
And  the  seid  Lordes  besaught  the  Kyng,  that  he  wuld  remember 
hym,  yf  he  myght  fynde  any  resonable  mater  that  myght  be 
objected  ayenst  the  seid  cleyme  and  title,  in  so  moche  as  his  seid 
Highnes  had  seen  and  understouden  many  dyvers  writyngs  and 
Cronicles.  Wheruppon,  on  the  morn  the  xviii  day  of  October, 
.  .  .  the  forseid  Lordes  sent  for  the  Kyngs  Justices  into  the 
Parlement  Chambre,  to  have  their  avis  and  Counsell  in  this 
behalf,  and  there  delyvered  to  theym  the  writyng  of  the  cleyme 
of  the  seid  Due,  and  in  the  Kyngs  name  gave  theym  straitely  in 
commaundement,  sadly  to  take  avisament  therin,  and  to  serche 
and  fynde  all  such  objections  as  myght  be  leyde  ayenst  the  same, 
in  fortefying  of  the  Kynges  right. 


CLARK  S   CASE.  3 

Wherunto  the  same  Justices,  the  Monday,  the  xx  day  of  Octobr' 
then  next  ensuyng,  for  their  answere  uppon  the  seid  writyng  to 
theym  delyvered  seiden,  that  they  were  the  Kyngs  Justices,  and 
have  to  determyne  such  maters  as  com  before  theym  in  the  lawe, 
betwene  partie  and  partie,  and  in  such  maters  as  been  betwene 
partie  and  partie  they  may  not  be  of  Counseill;  and  sith  this 
mater  was  betwene  the  Kyng  and  the  seid  Due  of  York  as  two 
parties,  and  also  it  hath  not  be  accustumed  to  calle  the  Justices 
to  Counseill  in  such  maters,  and  in  especiall  the  mater  was  so 
high,  and  touched  the  Kyngs  high  estate  and  regalie,  which  is 
above  the  lawe  and  passed  ther  lernyng,  wherfore  they  durst 
not  enter  into  eny  communication  therof,  for  it  perteyned  to  the 
Lordes  of  the  Kyngs  blode,  and  th'  apparage  of  this  his  lond,  to 
have  communication  and  medle  in  such  maters;  and  therfore 
they  humble  bysought  all  the  Lordes,  to  have  theym  utterly 
excused  of  eny  avyce  or  Counseill,  by  theym  to  be  yeven  in  that 
matier.  .  .  . 


CLARK'S  CASE. 

Common  Pleas.     1596. 

[5  Coke's  Reports,  64a.]  ^ 

In  an  action  of  false  imprisonment  brought  by  Clark  against 
Gape;  the  defendant  justified  the  imprisonment,  because  King 
E.  6.  incorporated  the  town  of  St.  Albans  by  the  name  of  Mayor, 
etc.,  and  granted  to  them  to  make  ordinances;  and  shewed,  that 
the  Queen  appointed  the  term  to  be  kept  there,  and  that  they 
with  the  assent  of  the  plaintiff  and  other  burgesses,  did  assess  a 
sum  on  every  inhabitant  for  the  charges  in  erecting  the  courts 
there;  and  ordained,  that  if  any  should  refuse  to  pay,  etc.,  that 
he  should  be  imprisoned,  etc.,  and  because  the  plaintiff  being  a 
burgess,  etc.,  refused  to  pay,  etc.,  he  as  Mayor  justified;  and  it 
was  adjudged  no  plea,  for  this  ordinance  is  against  the  statute  of 
Magna  Charta,  cap.  29.  Nullus  liber  homo  impnsonetur ;  which 
act  hath  been  confirmed  and  established  above  thirty  times,  and 
the  plaintiff's  assent  cannot  alter  the  law  in  such  case;  but  it  was 
resolved,  that  they  might  have  inflicted  a  reasonable  penalty,  but 
not  imprisonment,  which  penalty  they  might  limit  to  be  levied  by 
distress,  or  for  which  an  action  of  debt  lay;  and  the  plaintiff  had 
judgment. 

^  B.C.  sub  nom.     Bab  v.  Clarke,  Moore,  411.  —  Ed. 


4  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

PROHIBITIONS  DEL  ROY. 
Before  all  the  Judges.     1607. 

[12  Coke's  Reports,  63.] 

Note,  upon  Sunday  the  10th  of  November  in  this  same  term, 
the  King,  upon  complaint  made  to  him  by  Bancroft,  Archbishop 
of  Canterbury,  concerning  prohibitions,  the  King  was  informed, 
that  when  the  question  was  made  of  what  matters  the  ecclesiastical 
Judges  have  cognizance,  either  upon  the  exposition  of  the  statutes 
concerning  tithes,  or  any  other  thing  ecclesiastical,  or  upon  the 
statute  1  El.  concerning  the  high  commission,  or  in  any  other 
case  in  which  there  is  not  express  authority  in  law,  the  King 
himself  may  decide  it  in  his  royal  person;  and  that  the  Judges 
are  but  the  delegates  of  the  King,  and  that  the  King  may  take 
what  causes  he  shall  please  to  determine,  from  the  determination 
of  the  Judges,  and  may  determine  them  himself.  And  the  Arch- 
bishop said,  that  this  was  clear  in  divinity,  that  such  authority 
belongs  to  the  King  by  the  word  of  God  in  the  Scripture.  To 
which  it  was  answered  by  me,  in  the  presence,  and  with  the  clear 
consent  of  all  the  Judges  of  England,  and  Barons  of  the  Exchequer, 
that  the  King  in  his  own  person  cannot  adjudge  any  case,  either 
criminal,  as  treason,  felony,  &c.  or  betwixt  party  and  party,  con- 
cerning his  inheritance,  chattels,  or  goods,  &c.  but  this  ought  to 
be  determined  and  adjudged  in  some  court  of  justice,  according 
to  the  law  and  custom  of  England;  and  always  judgments  are 
given,  ideo  consideratum  est  per  curiam,  so  that  the  Court  gives 
the  judgment:  and  the  King  hath  his  Court,  viz.  in  the  upper 
house  of  Parliament,  in  which  he  with  his  Lords  is  the  supreme 
Judge  Over  all  other  Judges;  for  if  error  be  in  the  Common  Pleas, 
that  may  be  reversed  in  the  King's  Bench:  and  if  the  Court  of 
King's  Bench  err,  that  may  be  reversed  in  the  upper  house  of 
Parliament,  by  the  King,  with  the  assent  of  the  Lords  spiritual 
and  temporal,  without  the  Commons:  and  in  this  respect  the 
King  is  called  the  Chief  Justice,  20  H.  7.  7  a.  by  Brudnell :  and 
it  appears  in  our  books,  that  the  King  may  sit  in  the  Star-chamber; 
but  this  was  to  consult  with  the  Justices,  upon  certain  questions 
proposed  to  them,  and  not  in  judicio:  so  in  the  King's  Bench  he 
may  sit,  but  the  Court  gives  the  judgment:  and  it  is  commonly 
said  in  our  books,  that  the  King  is  always  present  in  Court  in  the 
judgment  of  law;  and  upon  this  he  cannot  be  nonsuit:  but  the 
judgments  are  always  given  per  curiam;  and  the  Judges  are  sworn 


PROCLAMATIONS.  5 

to  execute  justice  according  to  law  and  the  custom  of  England. 
And  it  appears  })y  the  act  of  Parliament  of  2  Ed.  3.  cap.  9.  2  Ed. 
3.  cap.  1.  That  neither  by  the  great  seal,  nor  by  the  little  seal, 
justice  shall  be  delayed;  ergo,  the  King,  cannot  take  any  cause 
out  of  any  of  his  Courts,  and  give  judgment  upon  it  himself,  but 
in  his  own  cause  he  may  stay  it,  as  it  doth  appear  11  H.  4.  8.  .  .  . 
Then  the  King  said,  that  he  thought  the  law  was  founded  upon 
reason,  and  that  he  and  others  had  reason,  as  well  as  the  Judges: 
to  which  it  was  answered  by  me,  that  true  it  was,  that  God  had 
endowed  his  Majesty  with  excellent  science,  and  great  endow- 
ments of  nature;  but  His  Majesty  was  not  learned  in  the  laws  of 
his  realm  of  England,  and  causes  which  concern  the  life,  or  inheri- 
tance, or  goods,  or  fortunes  of  his  subjects,  are  not  to  be  decided 
by  natural  reason  but  by  the  artificial  reason  and  judgment  of 
law,  which  law  is  an  act  which  requires  long  study  and  experience, 
before  that  a  man  can  attain  to  the  cognizance  of  it:  and  that  the 
law  was  the  golden  met-wand  and  measure  to  try  the  causes  of  the 
subjects;  and  which  protected  his  Majesty  in  safety  and  peace: 
with  which  the  King  was  greatly  offended,  and  said,  that  then 
he  should  be  under  the  law,  which  was  treason  to  affirm,  as  he 
said;  to  which  I  said,  that  Bracton  saith,  quod  Rex  non  debet  esse 
sub  homine,  sed  sub  Deo  et  lege. 


PROCLAMATIONS. 

Privy  Council.     1610. 

[12  Coke's  Reports,  74.]  ^ 


Memorandum,  that  upon  Thursday,  20  Sept.  8  Regis  Jacobi, 
I  was  sent  for  to  attend  the  Lord  Chancellor,  Lord  Treasurer, 
Lord  Privy  Seal,  and  the  Chancellor  of  the  Duchy;  there  being 
present  the  Attorney,  the  Solicitor,  and  Recorder:  and  two 
questions  were  moved  to  me  by  the  Lord  Treasurer;  the  one  if 
the  King  by  his  proclamation  may  prohibit  new  buildings  in  and 
about  London,  &c.;    the  other,  if  the  King  may  prohibit  the 

1  s.c.  2  Howell's  State  Trials,  723.  —  Ed. 


6  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

making  of  starch  of  wheat;  and  the  Lord  Treasurer  said,  that 
these  were  preferred  to  the  King  as  grievances,  and  against  the 
law  and  justice:  and  the  King  hath  answered,  that  he  will  confer 
with  his  Privy  Council,  and  his  Judges,  and  then  he  will  do  right 
to  them.  To  which  I  answered,  that  these  questions  were  of  great 
importance.  2.  That  they  concerned  the  answer  of  the  King 
to  the  body,  viz.  to  the  Commons  of  the  house  of  Parliament. 
3.  That  I  did  not  hear  of  these  questions  until  this  morning  at 
nine  of  the  clock :  for  the  grievances  were  preferred,  and  the  answer 
made  when  I  was  in  my  circuit.  And,  lastly,  both  the  procla- 
mations, which  now  were  shewed,  were  promulgated,  anno  5  Jac. 
after  my  time  of  attorneyship:  and  for  these  reasons  I  did  humbly 
desire  them  that  I  might  have  conference  with  my  brethren  the 
Judges  about  the  answer  of  the  King,  and  then  to  make  an  advised 
answer  according  to  law  and  reason.  To  which  the  Lord  Chancellor 
said,  that  every  precedent  had  first  a  commencement,  and  that 
he  would  advise  the  Judges  to  maintain  the  power  and  prerogative 
of  the  King;  and  in  cases  in  which  there  is  no  authority  and 
precedent,  to  leave  it  to  the  King  to  order  in  it,  according  to  his 
wisdom,  and  for  the  good  of  his  subjects,  or  otherwise  the  King 
would  be  no  more  than  the  Duke  of  Venice:  and  that  the  King 
was  so  much  restrained  in  his  prerogative,  that  it  was  to  be  feared 
the  bonds  would  be  broken:  and  the  Lord  Privy  Seal  said,  that 
the  physician  was  not  always  bound  to  a  precedent,  but  to  apply 
his  medicine  according  to  the  quality  of  the  disease:  and  all 
concluded  that  it  should  be  necessary  at  that  time  to  confirm  the 
King's  prerogative  with  our  opinions,  although  that  there  were 
not  any  former  precedent  or  authority  in  law:  for  every  precedent 
ought  to  have  a  commencement. 

To  which  I  answered,  that  true  it  is  that  every  precedent 
hath  a  commencement;  but  when  authority  and  precedent  is 
wanting,  there  is  need  of  great  consideration,  before  that  any 
thing  of  novelty  shall  be  established,  and  to  provide  that  this 
be  not  against  the  law  of  the  land:  for  I  said,  that  the  King 
cannot  change  any  part  of  the  common  law,  nor  create  any  offence 
by  his  proclamation,  which  was  not  an  offence  before,  without 
Parliament.  But  at  this  time  I  only  desired  to  have  a  time  of 
consideration  and  conference  with  my  brothers,  for  deliberandum 
est  diu,  quod  statuendum  est  semel;  to  which  the  Solicitor  said, 
that  divers  sentences  were  given  in  the  Star-chamber  upon  the 
proclamation  against  building;  and  that  I  myself  had  given 
sentence  in  divers  cases  for  the  said  proclamation:    to  which  I 


WINTHROP   V.    LECHMERE.  7 

answered,  that  precedents  were  to  be  seen,  and  consideration  to 
be  had  of  this  upon  conference  with  my  brethren,  for  that  melius 
est  recurrere,  quam  male  currere;  and  that  indictments  conclude, 
contra  leges  et  statuta;  but  I  never  heard  an  indictment  to  conclude, 
contra  regiam  proclamationem.  At  last  my  motion  was  allowed ; 
and  the  Lords  appointed  the 'two  Chief  Justices,  Chief  Baron, 
and  Baron  Altham,  to  have  consideration  of  it.  .  .  . 

In  the  same  term  it  was  resolved  by  the  two  Chief  Justices, 
Chief  Baron,  and  Baron  Altham,  upon  conference  betwixt  the 
Lords  of  the  Privy  Council  and  them,  that  the  King  by  his  proc- 
lamation cannot  create  any  offence  which  was  not  an  offence 
before,  for  then  he  may  alter  the  law  of  the  land  by  his  proclama- 
tion in  a  high  point;  for  if  he  may  create  an  offence  where  none 
is,  upon  that  ensues  fine  and  imprisonment:  also  the  law  of  Eng- 
land is  divided  into  three  parts,  common  law,  statute  law,  and 
custom;  but  the  King's  proclamation  is  none  of  them.  .  .  . 

Lastly,  if  the  offence  be  not  punishable  in  the  Star-chamber, 
the  prohibition  of  it  by  proclamation  cannot  make  it  punishable 
there.  .  .  . 


WINTHROP,  Appellant,  v.  LECHMERE,  Appellee. 

Privy  Council.     1728. 

[5  Massachusetts  Historical  Society  Collections,  Sixth  Series,  440.]  ^ 

Appeal  from  the  Superior  Court  of  the  Colony  of  Connecticut. 

Wait  Still  Winthrop  died  intestate  in  1717,  owning  personalty 
and  realty  in  Connecticut.  The  Court  of  Probates  for  the  County 
of  New  London  appointed  John  Winthrop  administrator.  The 
administrator  was  the  intestate's  only  son;  and  there  was  one 
daughter,  Ann,  wife  of  Thomas  Lechmere.  The  administrator's 
inventory,  disregarding  the  Connecticut  Act  of  1699  ^  for  the  Settle- 

1  A  short  statement  has  been  framed  upon  the  papers  printed  by  the  Massa- 
chusetts Historical  Society.  Additional  matter  may  be  found  in  5  Mass.  Hist. 
Soc.  Coll.,  Sixth  Series,  436-511;  7  Conn.  Colonial  Records,  20,  37,  43,  122, 
125,  136,  185,  217,  238,  571;  4  Conn.  Hist.  Soc.  Coll.,  94,  n.,  234,  392;  5  id. 
71,  and  passim,  11  id.  24,  and  passim;  Mass.  Hist.  Soc.  Proc,  1873-1875,  100. 
See  Thayer's  Cases  on  Constitutional  Law,  34.  —  Ed. 

^  The  act  may  be  found  in  4  Conn.  Colonial  Records,  307,  or  in  Acts  and 
Resolves  of  Connecticut,  edition  of  1702  (reprinted  in  facsimile  in  1901),  59, 
or  in  Acts  and  Laws  of  Connecticut,  edition  of  1715,  61.  —  Ed. 


8  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

ment  of  Intestates'  Estates,  omitted  realty.  Hence  the  Court  of 
Probates  rejected  the  inventory.  Thereupon  the  administrator 
appealed  to  the  Superior  Court.  Pending  that  appeal,  Lechmere 
in  behalf  of  his  wife  moved  the  Court  of  Probates  for  new  letters 
of  administration.  The  Court  of  Probates  denied  that  motion. 
Thereupon  Lechmere  appealed  to  tlie  Superior  Court.  The  Supe- 
rior Court  ultimately  decided  the  two  appeals  at  the  same  time, 
and  decided  both  of  them  against  Winthrop.  Thereupon  Win- 
throp  unsuccessfully  memorialized  the  General  Assembly.  He 
then  petitioned  the  King  in  Council  to  admit  an  appeal.  This 
petition  was  granted,  and  the  appeal  was  referred  to  the  Committee 
for  Hearing  Appeals  from  the  Plantations.^ 

Yorke  (Attorney  General)  and  Talbot  (Solicitor  General),  for 
the  appellant.  ...  As  to  this  Act  we  .  .  .  insist  (first)  that  it 
is  an  obsolete  act;  .  .  .  (secondly)  that  the  same  is  void  in  it  self 
as  being  not  warranted  by  the  Charter,^  and  can  no  ways  influence 

1  Winthrop  wrote:  "  There  were  present  at  the  hearing  of  my  case:  the 
Lord  President  of  the  Councell,  the  Duke  of  Devonshire,  my  lord  Trevor, 
Lord  Privy  Seal,  the  two  Lord  Chief  Justices,  the  Lord  Chancelor,  Sir  Robert 
Walpole,  Lord  Treasurer,  the  Master  of  the  Rolls,  my  Lord  Hay,  my  Lord 
Finlater,  Chancelor  of  Scotland,  Archbishop  of  York,  Archbishop  of  Canter- 
bury, my  Lord  Bishop  of  London,  and  a  full  Councell  Board;  and  a  very 
numerous  auditory  of  knights  and  gentlemen."  Letter  of  John  Winthrop 
to  his  wife,  5  Mass.  Hist.  Soc.  Coll.,  Sixth  Series,  510.  —  Ed. 

^  The  Connecticut  Charter  of  1862  began  thus:  "  Charles  the  Second,  by 
the  Grace  of  God,  King  of  England,  Scotland,  France,  and  Ireland,  Defender 
of  the  Faith,  etc.,  Greeting.  Whereas  by  the  several  Navigations,  Discov- 
eries, and  Successful  Plantations  of  divers  of  Our  Loving  Subjects  of  this 
Our  Realm  of  England,  several  Lands,  Islands,  Places,  Colonies,  and  Planta- 
tions have  been  Obtained,  and  Setled  in  that  part  of  the  Continent  of  America, 
called  New-England ;  and  thereby  the  Trade,  and  Commerce  there,  hath  been 
of  late  Years  much  Increased."  It  then  said  that  the  King  had  been  informed 
by  the  petition  of  nineteen  men  therein  named,  "  being  Persons  principally 
Interested  in  Our  Colony,  or  Plantation  of  Connecticut  .  .  .  that  the  same 
Colony,  or  the  greatest  part  thereof  was  Purchased,  .  .  .  and  some  other  part 
thereof  gained  by  Conquest,  and  with  much  Difficulty,  and  at  the  only  En- 
deavours, Expence,  and  Charges  of  them,  and  their  Associates,  and  those 
under  whom  they  Claim,  Subdued,  and  Improved,  and  thereby  become  a  Con- 
siderable Inlargement,  and  Addition  of  Our  Dominions."  It  continued:  "  In 
Consideration  thereof,  and  in  Regard  the  said  Colony  is  Remote  from  other 
the  English  Plantations  .  .  .  and  to  the  End  the  Affairs,  and  Business  which 
shall  from  time  to  time  happen,  or  arise  concerning  the  same,  may  be  duly 
Ordered,  and  Managed,  We  have  thought  Fit,  and  at  the  Humble  Petition  of 
the  Persons  aforesaid,  and  are  Graciously  Pleased  to  Create,  and  Make  them 
a  Body  Politick,  and  Corporate,  with  the  Powers,  and  Privileges  herein  after 
mentioned."    It  thereupon  provided  that  those  persons  "  and  all  such  others  aa 


WINTHROP   V.    LECHMERE.  » 

the  present  case.     For  by  the  Charter  their  power  of  making  laws  is 
restrained  and  limitted  in  a  very  special  manner,  (viz.)  such  laws 

now  are,  or  hereafter  shall  be  Admitted,  and  made  Free  of  the  Company,  and 
Society  of  Our  Colony  of  Connecticut  in  America,  shall  from  Time  to  Time, 
and  for  Ever  hereafter,  be  One  Body  Corporate,  and  Politick  in  Fact,  and 
Name,  by  the  Name  of,  Governour,  and  Company  of  the  English  Colony  of 
Connecticut  in  New-England  in  America;  and  that  by  the  same  Name  they, 
and  their  Successors  shall,  and  may  have  Perpetual  Succession,  and  shall,  and 
may  be  Persons  Able,  and  Capable  in  the  Law,  to  Plead,  and  be  Impleaded, 
to  Answer,  and  to  be  Answered  unto,  to  Defend,  and  be  Defended  in  All,  and 
Singular  Suits,  "Causes,  Quarrels,  Matters,  Actions,  and  Things  of  what  Kind, 
or  Nature  soever;  and  also  to  Have,  Take,  Possess,  Acquire,  and  Purchase 
Lands,  Tenements,  or  Hereditaments,  or  any  Goods,  or  Chattels,  and  the 
same  to  Lease,  Grant,  Demise,  Alien,  Bargain,  Sell,  and  Dispose  of,  as  other 
Our  Liege  People  of  this  Our  Realm  of  England,  or  any  other  Corporation,  or 
Body  Politick  within  the  same  may  Lawfully  do.  And  further.  That  the  said 
Governour,  and  Company,  and  their  Successors,  shall,  and  may  for  ever  here- 
after have  a  Common  Seal,  to  Serve,  and  Use  for  all  Causes,  Matters,  Things 
and  Affairs  whatsoever,  of  them,  and  their  Successors."  It  said  also:  "  For 
the  better  Ordering,  and  Managing  of  the  Affairs,  and  Business  of  the  said 
Company,  and  their  Successors,  there  shall  be  One  Governour,  One  Deputy- 
Governour,  and  Twelve  Assistants,  to  be  from  time  to  time  Constituted, 
Elected,  and  Chosen  out  of  the  Freemen  of  the  Said  Company  .  .  .  which 
said  Officers  shall  apply  themselves  to  take  care  for  the  best  Disposing,  and 
Ordering  of  the  general  Business,  and  Affairs  of,  and  concerning  the  Land, 
and  Hereditaments  herein  after  mentioned  to  be  Granted,  and  the  Plantation 
thereof,  and  the  Government  of  the  People  thereof.  .  .  .  And  further,  We 
Will,  and  by  these  Presents  for  Us,  Our  Heirs,  and  Successors,  Do  Ordain,  and 
Grant,  that  the  Governour  of  the  said  Company  for  the  Time  being,  or  in  his 
Absence  by  occasion  of  Sickness,  or  otherwise  by  his  leave,  or  permission,  the 
Deputy-Governour,  .  .  .  shall,  and  may  from  time  to  time  upon  all  Occa- 
sions, give  Order  for  the  Assembling  of  the  said  Company,  and  Calling  them 
together  to  Consult,  and  Advise  of  the  Business,  and  Affairs  of  the  said  Com- 
pany, and  that  for  ever  hereafter,  twice  in  every  Year,  ...  or  oftner  in  case 
it  shall  be  requisite;  the  Assistants,  and  Freemen  of  the  said  Company,  or  such 
of  them  (not  exceeding  Two  Persons  from  each  Place,  Town,  or  City)  who 
shall  be  from  time  to  time  thereunto  Elected,  or  Deputed,  by  the  Major  part 
of  the  Freemen  of  the  Respective  Towns,  Cities,  and  Places,  for  which  they 
shall  be  so  Elected,  or  Deputed,  shall  have  a  General  Meeting,  or  Assembly, 
then,  and  there  to  Consult,  and  Advise  in,  and  about  the  Affairs,  and  Business 
of  the  said  Company;  and  that  the  Governour,  or  in  his  Absence  the  Deputy- 
Governour,  .  .  .  and  such  of  the  Assistants,  and  Freemen  of  the  said  Com- 
pany as  shall  be  so  Elected,  or  Deputed,  and  be  present  at  such  Meeting,  or 
Assembly,  or  the  greatest  Number  of  them  whereof  the  Governour,  or  Deputy 
Governour,  and  Six  of  the  Assistants  at  least,  to  be  Seven,  shall  be  called  the 
General  Assembly,  and  shall  have  full  Power,  and  Authority  to  Alter,  and 
Change  their  Days,  and  Times  of  Meeting,  or  General  Assemblies,  for  Electing 
the  Governour,  Deputy  Governour,  and  Assistants,  or  other  Officers,  .  .  . 
and  to  Choose,  Nominate,  and  Appoint  such,  and  so  many  other  Persons  as 
they  shall  think  fit,  and  shall  be  Willing  to  Accept  the  same,  to  be  Free  of  the 


10  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

must  be  wholesome  and  reasonable  and  [not]  contrary  to  the  laws 
of  this  realm  of  England,  and  then  by  the  Charter  the  inhabitants 

said  Company,  and  Body  Politick,  and  them  into  the  same  to  Admit :  And  to 
Elect,  and  Constitute  such  Officers  as  they  shall  Think  Fit,  and  Requisite  for 
the  Ordering,  Managing,  and  Disposing  of  the  Affairs  of  the  said  Governour, 
and  Company,  and  their  Successors.  .  .  .  And  further,  .  .  .  We  do  for  Us, 
Our  Heirs,  and  Successors,  Ordain,  Declare,  and  Grant  unto  the  said  Gover- 
nour, and  Company,  and  their  Successors,  That  all,  and  every  the  Subjects 
of  Us,  Our  Heirs,  or  Successors,  which  shall  go  to  Inhabit  within  the  said 
Colony,  and  every  of  their  Children  which  shall  Happen  to  be  Born  there,  or 
on  the  Sea  in  going  thither,  or  Returning  from  thence,  shall  have  and  enjoy  all 
Liberties,  and  Immunities  of  Free,  and  Natural  Subjects  within  any  the 
Dominions  of  Us,  Our  Heirs,  or  Successors,  to  all  Intents,  Constructions,  and 
Purposes  whatsoever,  as  if  they,  and  every  of  them  were  Born  within  the 
Realm  of  England.  .  .  .  And  We  do  further  of  Our  especial  Grace,  certain 
Knowledge,  and  meer  Motion,  Give,  and  Grant  unto  the  said  Governour,  and 
Company  of  the  English  Colony  of  Connecticut  in  New  England  in  America, 
and  their  Successors,  That  it  shall  and  may  be  Lawful  to,  and  for  the  Gover- 
nour, or  Deputy-Governour,  and  such  of  the  Assistants  of  the  said  Company 
for  the  Time  being,  as  shall  be  Assembled  in  any  of  the  General  Courts  afore- 
said, or  in  any  Courts  to  be  especially  Summoned,  or  Assembled  for  that 
Purpose,  or  the  greater  part  of  them,  whereof  the  Governour,  or  Deputy- 
Governour,  and  Six  of  the  Assistants  to  be  always  Seven,  to  Erect,  and  Make 
such  Judicatories,  for  the  Hearing,  and  Determining  of  all  Actions,  Causes, 
Matters,  and  Things  happening  within  the  said  Colony,  or  Plantation,  and 
which  shall  be  in  Dispute,  and  Depending  there,  as  they  shall  think  Fit,  and 
Convenient,  and  also  from  Time  to  Time  to  Make,  Ordain,  and  Establish  all 
Manner  of  Wholesome,  and  Reasonable  Laws,  Statutes,  Ordinances,  Direc- 
tions, and  Instructions,  not  Contrary  to  the  Laws  of  this  Realm,  of  England, 
as  well  for  Setling  the  Forms,  and  Ceremonies  of  Government,  and  Magis- 
tracy, Fit,  and  Necessary  for  the  said  Plantation,  and  the  Inhabitants  there, 
as  for  Naming  and  Stihng  all  Sorts  of  Officers,  both  Superiour,  and  Inferiour, 
which  they  shall  Find  Needful  for  the  Government,  and  Plantation  of  the  said 
Colony,  and  the  Distinguishing,  and  setting  forth  of  the  several  Duties, 
Powers,  and  Limits  of  every  such  Office,  and  Place,  and  the  Forms  of  such 
Oaths,  not  being  contrary  to  the  Laws,  and  Statutes  of  this  Our  Realm  of 
England,  to  be  Administered  to  the  Execution  of  the  said  several  Offices,  and 
Places;  and  also  for  the  Disposing,  and  Ordering  of  the  Election  of  such  of  the 
said  Officers  as  are  to  be  Annually  Chosen,  and  of  such  others  as  shall  Succeed 
in  case  of  Death,  or  Removal,  and  Administering  the  said  Oath  to  the  New- 
Elected  Officers,  and  Granting  necessary  Commissions,  and  for  Imposition  of 
Lawful  Fines,  Mulcts,  Imprisonment,  or  other  Punishment  upon  Offenders, 
and  Delinquents  according  to  the  Course  of  other  Corporations  within  this 
Our  Kingdom  of  England,  and  the  same  Laws,  Fines,  Mulcts,  and  Executions, 
to  Alter,  Change,  Revoke,  Adnul,  Release,  or  Pardon  under  their  Common 
Seal,  .  .  .  Willing,  Commanding,  and  Requiring,  and  by  these  Presents  for 
Us,  Our  Heirs,  and  Successors,  Ordaining,  and  Appointing,  that  all  such  Laws, 
Statutes,  and  Ordinances,  Instructions,  Impositions  and  Directions  as  shall 
be  so  made  by  the  Governour,  Deputy  Governour,  and  Assistants  as  aforesaid, 
and  Publish[ed]  in  Writing  under  their  Common  Seal,  shall  carefully,  and 


WINTHROP   V.    LECHMERE.  11 

may  have,  take,  possess,  &c.,  lands,  &c.,  and  the  same  dispose  of 
as  other  the  leige  people  of  the  realm  of  England,  and  were  to 

duly  be  Observed,  Kept,  Performed,  and  put  in  Execution,  according  to  the 
true  Intent,  and  Meaning  of  the  same,  and  these  Our  Letters  Patents,  or  the 
DupHcate,  or  Exemplification  thereof,  shall  be  to  all,  and  every  such  Officers, 
Superiors,  and  Inferiors  from  Time  to  Time,  for  the  putting  of  the  same  Orders, 
Laws,  Statutes,  Ordinances,  Instructions,  and  Directions  in  due  Execution, 
against  Us,  Our  Heirs,  and  Successors,  a  sufficient  Warrant  and  Discharge. 
And  We  do  further  for  Us,  Our  Heirs,  and  Successors,  Give  and  Grant  unto 
the  said  Governour,  and  Company,  and  their  Successors  by  these  Presents, 
That  it  shall,  and  may  be  lawful  to,  and  for  the  Chief  Commanders,  Gover- 
nours,  and  Officers  of  the  said  Company  for  the  Time  being,  .  .  .  for  their 
Special  Defence,  and  Safety,  to  Assemble,  Martial,  Array,  and  put  in  Warlike 
Posture  the  Inhabitants  of  the  said  Colony,  and  to  Commissionate,  Impower, 
and  Authorize  such  Person,  or  Persons  as  they  shall  think  fit,  to  Lead  and 
Conduct  the  said  Inhabitants,  and  to  Encounter,  Expulse,  Repel,  and  Resist 
by  Force  of  Arms,  as  well  by  Sea,  as  by  Land,  and  also  to  Kill,  Slay,  and 
Destroy  by  all  fitting  Ways,  Enterprizes,  and  Means  whatsoever,  all,  and 
every  such  Person,  or  Persons  as  shall  at  any  Time  hereafter  Attempt,  or 
Enterprize  the  Destruction,  Invasion,  Detriment,  or  Annoyance  of  the  said 
Inhabitants,  or  Plantation,  and  to  Use,  and  Exercise  the  Law  Martial  in  such 
Cases  only  as  Occasion  shall  Require.  .  .  .  And  Know  Ye  further.  That  We 
of  Our  abundant  Grace,  certain  Knowledge,  and  meer  Motion,  have  Given, 
Granted,  and  Confirmed,  and  by  these  Presents  for  Us,  Our  Heirs,  and  Suc- 
cessors, do  Give,  Grant,  and  Confirm  unto  the  said  Governour,  and  Company, 
and  their  Successors,  all  that  part  of  Our  Dominions  in  New-England  in  Amer- 
ica, Bounden  on  the  East  by  Narraganset-River,  commonly  called  Narraganset- 
Bay,  where  the  said  River  falleth  into  the  Sea:  And  on  the  North  by  the  Line 
of  the  Massachusetts -Plantation,  &  on  the  South  by  the  Sea:  And  in 
Longitude  as  the  Line  of  the  Massachusetts-Colony,  running  from  East  to 
West,  That  is  to  say,  From  the  said  Narraganset-Bay  on  the  East,  to  the 
South  Sea  on  the  West  part,  with  the  Islands  thereimto  Adjoining,  together 
with  all  Firm  Lands,  Soyles,  Grounds,  Havens,  Ports,  Rivers,  Waters,  Fish- 
ings, Mines,  Minerals,  Precious  Stones,  Quarreys,  &  all  &  singular  other 
Commodities,  Jurisdictions,  Royalties,  Privileges,  Franchises,  Preheminences, 
and  Hereditaments  whatsoever,  within  the  said  Tract,  Bounds,  Lands,  and 
Islands  aforesaid,  or  to  them,  or  any  of  them  belonging.  To  have  and  to  Hold 
the  same  unto  the  said  Governour  &  Company,  their  Successors,  and  Assigns 
for  ever,  upon  Trust,  and  for  the  Use,  and  Benefit  of  themselves,  and  their 
Associates,  Freemen  of  the  said  Colony,  their  Heirs,  and  Assigns,  to  be  holden 
of  LTs,  Our  Heirs,  and  Successors,  as  of  Our  Manner  of  East-Greenwich,  in 
Free  and  Common  Soccage,  and  not  in  Capite,  nor  by  Knights  Service,  Yield- 
ing, and  Paying  therefore  to  Us,  our  Heirs,  and  Successors,  only  the  Fifth  part 
of  all  the  Oar  of  Gold,  and  Silver,  which  from  time  to  Time,  and  at  all  times 
hereafter,  shall  be  there  Gotten,  Had,  or  Obtained,  in  lieu  of  all  Services, 
Duties,  and  Demands  whatsoever,  to  be  to  Us,  Our  Heirs,  or  Successors  there- 
for, or  thereout  Rendered,  Made,  or  Paid.  ..." 

The  extracts  quoted  have  been  taken  from  the  Charter  of  1662  as  it  appears 
in  Acts  and  Laws  of  Connecticut,  edition  of  1750.  —  Ed. 


12  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

enjoy  all  liberties  and  immunities  of  natural  born  subjects,  and 
the  soil  of  the  whole  Province  is  granted  to  the  Governor  and 
Company,  and  their  successors  and  assigns  for  ever,  upon  trust 
and  for  the  use  and  benefit  of  themselves  and  their  associates, 
their  heirs  and  assigns,  to  be  holden  of  his  Majestie,  as  of  the 
Mannor  of  East  Greenwich  in  free  and  comon  soccage. 

By  the  comon  law  of  England,  which  is  what  the  Charter  has 
a  view  to,  it  is  undoubted  that  real  estates  descend  to  the  eldest 
son  of  him  that  was  last  seized  in  fee  as  his  heir  at  law;  and  neither 
an  administrator  or  an  Ecclesiastical  Court  have  any  thing  to  do 
therewith,  and  by  the  law  of  England  an  only  daughter  cannot 
be  coheir  with  an  only  son,  but  the  son  is  absolute  and  sole  heir 
to  the  father,  and  must  as  such  inherit  his  real  estate  undevised 
by  will,  and  we  take  it  that  where  an  estate  of  inheritance  is 
granted  under  the  Great  Seal  of  Great  Brittain,  which  this  Charter 
does,  that  the  same  is  descendible  according  to  the  course  of  the 
common  law,  and  we  also  take  it  that  all  our  Plantations  carry 
with  them  the  common  law  of  their  mother  country.  .  .  .  We 
therefore  insist  this  law  is  null  and  void,  as  being  contrary  to  the 
law  of  this  realm,  unreasonable,  and  against  the  tenour  of  their 
Charter,  and  consequently  the  Province  had  no  power  to  make 
such  a  law  and  the  same  is  void. 

Note.  The  laws  of  Connecticut  are  not  by  their  Charter"  directed 
to  be  laid  before  the  Crown  for  their  approbation  or  disallowance, 
so  that  there  is  no  other  way  to  avoid  any  laws  they  shall  make 
but  by  seeing  if  they  are  agreeable  to  the  powers  of  their  Charter, 
which  if  they  are  not,  then  we  apprehend  they  cannot  be  con- 
sidered as  any  laws  at  all,  since  a  formal  repeal  of  them  cannot 
be  had  otherwise  than  by  voiding  the  Charter.  .  .  . 

Willes,  for  respondent.^  Other  words  give  the  colony  power  to 
make  all  laws  whatsoever.  The  colony  is  not  like  a  corporation 
in  England.  A  corporation  in  England  is  bound  by  the  laws  here. 
The  provision  that  the  colony  may  not  make  laws  repugnant  to 
the  laws  of  England  means  that  the  colony  is  not  to  repeal  the 
laws  of  England  wherein  the  plantations  are  mentioned.  If  the 
provision  be  extended  to  all  laws  variant  from  the  laws  of  England, 
the  colony  can  make  no  laws  at  all. 

•  The  points  attributed  to  the  two  counsel  for  the  respondent  have  been 
based  upon  the  scanty  memoranda  taken  by  counsel  for  the  appellant  and 
preserved  in  5  Mass.  Hist.  Soc.  Coll.,  Sixth  Series,  495-496.  —  Ed. 


WINTHROP    V.    LECHMERE,  13 

Booth,  for  the  respondent.  The  clause  against  making  laws 
contrary  to  the  laws  of  England  pertains  to  public  matters,  trade, 
etc. 

Committee  for  Hearing  Appeals  from  the  Plantations. 

In  obedience  to  an  Order  in  Council  .  .  .  referring  to  this  Com- 
mittee the  humble  petition  and  appeal  of  John  Winthrop  .  .  . 
their  Lordships  .  .  .  took  the  said  petition  into  consideration.  .  .  . 

Their  Lordships  having  heard  all  parties  concerned  by  their 
counsell  learned  in  the  law  on  the  said  petition  and  appeal,  and 
there  being  laid  before  their  Lordships  an  act  passed  by  the  Gov- 
ernor and  Company  of  that  Colony  entitled  An  Act  for  the  Settle- 
ment of  Intestates  Estates,  by  which  act  (amongst  other  things) 
administrators  of  persons  dying  intestate  are  directed  to  inventory 
all  the  estate  whatsoever  of  the  person  so  deceased,  as  well  move- 
able as  not  moveable,  and  to  deliver  the  same  upon  oath  to  the 
Court  of  Probates,  and  by  the  said  Act  (debts,  funerals,  and  just 
expenses  of  all  sorts,  and  the  dower  of  the  wife  (if  any)  being  first 
allowed)  the  said  Court  of  Probates  is  empowered  to  distribute  all 
the  remaining  estate  of  any  such  intestate,  as  well  real  as  personal, 
by  equal  portions  to  and  amongst  the  children  and  such  as  legally 
represent  them,  except  the  eldest  son  who  is  to  have  two  shares 
or  a  double  portion  of  the  whole,  ...  do  agree  humbly  to  report 
as  their  opinion  to  your  Majesty,  that  the  said  Act  for  the  Settle- 
ment of  Intestates  Estates  should  be  declared  null  and  void,  being 
contrary  to  the  laws  of  England,  in  regard  it  makes  lands  of  in- 
heritance distributable  as  personal  estates,  and  is  not  warranted 
by  the  Charter  of  that  Colony;  and  that  the  said  .  .  .  sentences 
.  .  .  rejecting  the  inventory  .  .  .  because  it  did  not  contain  the 
real  as  well  as  personal  estate  .  .  .  may  be  all  reversed  and  sett 
aside;  .  .  .  and  that  the  said  sentence,  .  .  .  vacating  the  said 
letters  of  administration  granted  to  the  petitioner  and  granting 
administration  to  the  said  Thomas  and  Ann  Lechmere,  should 
also  be  reversed  and  sett  aside.  .  .  . 

And  hy  the  King  in  Council  it  was  so  decreed} 

*  The  decree  may  be  found  in  5  Mass.  Soc.  Hist.  Coll.  Sixth  Series,  496- 
509,  or  7  Conn.  Colonial  Records,  571-579,  or  Coxe's  Judicial  Power,  370- 
382.  —  Ed. 


14  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

REX  V.  CUTBUSH. 
King's  Bench.     1768. 

[4  Burrow,  2204.] 

This  was  an  Information  in  Nature  of  a  Quo  Warranto,  brought 
against  the  Defendant,  to  shew  by  what  Warrant  he  claimed  to  be 
a  Common-Council-Man  of  Maidstone:  Which  is  alledged  to  be 
an  ancient  Town  and  Corporation  consisting  of  a  Mayor  Jurats 
and  Commonalty;  and  that  the  Office  of  a  Common-Council- 
Man  was  a  public  office  therein. 

The  Defendant,  in  his  Plea,  admits  this;  but  goes  on  and  shews 
a  Charter  of  Incorporation  dated  17th  June  21  G.  2.  by  the  Name 
of  the  Mayor  Jurats  and  Commonalty  of  the  King's  Town  and 
Parish  of  Maidstone  in  the  County  of  Kent;  ordaining  that  Thir- 
teen of  the  Inhabitants  should  be  chosen  Jurats,  and  One  of  the 
Jurats  Mayor;  of  which  Thirteen  Inhabitants,  the  Twelve  others 
should  be  aiding  and  assisting  to  the  Mayor;  and  that  there  should 
be  Forty  of  the  remaining  principal  Inhabitants  chosen  to  be,  and 
should  be  and  be  called  the  Common-Council  of  the  said  Town 
and  Parish.  That  the  said  Charter  directed  that  the  Mayor 
Jurats  and  Common-Council  should  have  Power  of  making  By- 
Laws.  That  it  places  the  Election  of  Common-Council-Men  in 
the  Mayor  Jurats  and  Commonalty  or  the  Majority  of  them. 
That  the  Corporation  accepted  this  Charter:  And  afterwards, 
viz.  on  14th  March  1767,  the  then  Mayor  Jurats  and  Common- 
Council,  in  due  Manner  assembled  for  that  Purpose,  made  a 
Bye-Law;  which  By-Law  recited  the  said  Charter  and  the  Power 
thereby  given  them;  and  that  the  Commonalty  of  the  said  Town 
and  Parish  were  very  numerous,  and  the  Admission  of  them  to 
vote  in  the  Election  of  Common-Council-Men  of  the  said  Town  and 
Parish  had  been  found  by  Experience  to  be  attended  with  many 
Inconveniencies,  and  had  from  Time  to  Time  occasioned  divers 
Riots  and  Disorders  and  great  popular  Confusion  within  the  said 
Town  and  Parish,  and  had  very  much  disturbed  and  broken  in 
upon  the  Peace  good  Order  and  Government  of  the  said  Town 
and  Parish;  and  further  recited  that  such  Inconveniencies  would  be 
likely  to  be  remedied,  if  the  Right  of  electing  of  the  Common- 
Council-Men  of  the  said  Town  and  Parish  were  to  be  confined  to 
the  Mayor  Jurats  and  such  of  the  Commonalty  of  the  said  Town 
and  Parish  who  then  were  or  should  be  of  the  Common-Council  of 
the  said  Town  and  Parish  for  the  Time  being,  and  Sixty  Others  of 


REX  V.    CUTBUSH.  15 

the  said  Commonalty  who  were  or  should  be  the  senior  common 
Freemen  for  the  Time  being  of  the  said  Town  and  Parish,  as  therj 
should  stand  in  Order  and  Place  of  Seniority  upon  the  Books  of 
Admission  of  Freemen  of  the  said  Town  and  Parish;  such  Sixty 
not  being  either  Mayor  Jurats  or  of  the  Common-Council  of  the 
said  Town  and  Parish.  After  this  Recital  and  Preface,  It  is  then 
(for  the  preventing  the  like  Inconveniences  for  the  future,  and  for 
the  avoiding  of  popular  Confusion  and  Disorder  in  the  Election  of 
Common-Council-Men  within  and  for  the  said  Town  and  Parish,) 
ORDAINED  that  upon  every  or  any  future  Election  of  a  Common- 
Council-Man  or  Common-Council-Men  of  the  said  Town  and 
Parish,  the  Mayor  Jurats  and  such  of  the  Commonalty  of  the  said 
Town  and  Parish  who  then  were  or  should  be  of  the  Common- 
Council  of  the  said  Town  and  Parish  for  the  Time  being,  and 
Sixty  Others  of  the  said  Commonalty  who  then  were  or  should  be 
the  SENIOR  common  Freemen  for  the  Time  being  of  the  said  Town 
and  Parish,  as  they  should  from  Time  to  Time  stand  in  Order  and 
Place  of  Seniority  upon  the  Books  of  Admission  of  Freemen  of  the 
said  Town  and  Parish,  (such  Sixty  not  being  either  Mayor  Jurats 
or  of  the  Common-Council  of  the  said  Town  and  Parish,)  or  the 
major  Part  of  such  Mayor  Jurats  Common-Council  and  Sixty 
Senior  common  Freemen  for  the  Time  being  of  the  said  Town  and 
Parish,  should  meet  and  assemble  &c.;  and  being  so  met  and 
assembled  should,  by  Themselves,  without  the  presence  or  Con- 
currence of  ANY  OTHER  of  the  Commonolty  of  the  said  Town  and 
Parish,  elect  and  choose  One  or  more  of  the  principal  Inhabitants 
of  the  said  Town  and  Parish  to  be  a  Common-Council-Man  or 
Common  Council-Men  of  the  said  Town  and  Parish.  They  aver 
that  the  said  By-Law,  from  the  Time  of  the  making  thereof,  had 
been  and  still  is  in  full  Force  and  Virtue,  and  in  no  wise  annulled 
revoked  or  repealed.  The  Defendant  then  shews  that  He  was 
elected  a  Common  Council-Man  pursuant  to  this  By-Law:  And  by 
that  Warrant  He  has  ever  since  exercised  and  still  claims  to  exercise 
the  said  Office. 

The  King's  Coroner  and  Attorney,  in  his  Replication,  prays 
Oyer  of  these  Letters  Patent  of  21  G.  2.  which  being  read  and 
heard.  He  demurs  (generally)  to  the  Defendant's  Plea:  And  the 
Defendant  joins  in  Demurrer. 

This  Demurrer  was  argued  on  Wednesday  27th  of  January  last, 
by  Mr.  Cox  for  the  Prosecutor,  and  Mr.  Ashhurst  for  the  Defendant; 
and  again  now,  by  Mr.  Morton  for  the  Prosecutor,  and  Mr.  Serjeant 
Leigh  for  the  Defendant. 


16  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

The  Court  were  clear  and  unanimous.  That  this  By-Law  was 
bad.  They  held  it  to  be  manifestly  contrary  to  the  Intention  of 
the  Charter:  (Which,  Lord  Mansfield  said,  had  passed  upon 
hearing  all  Parties,  and  after  much  Litigation). 

It  is  made  by  a  Part  of  the  Corporation,  to  deprive  the  Rest 
of  their  Right  to  elect,  without  their  Consent.  The  Charter  gives 
this  Right  to  the  whole  Body  of  the  Commonalty:  The  By-Law 
confines  it  to  a  narrow  Compass  of  the  Sixty  Seniors  only.  This 
expressly  contradicts  the  Charter. 

Mr.  Justice  Yates  observed,  that  in  the  Case  of  Corporations, 
4  Co.  77.  b.  the  By-Law  which  was  put  in  Question,  did  not  vary 
the  Constitution.  And  the  great  Ground  of  that  Resolution  was 
"  that  it  must  be  made  by  common  Assent.^'  But  a  By-Law  made 
by  a  Part  of  the  Corporation  to  exclude  the  Rest,  without  their 
Assent,  is  not  good. 

And  He  likewise  agreed  to  what  Lord  Mansfield  had  before  ob- 
served. That  where  a  Corporation  is  by  Charter,  and  the  Com- 
mon-Council is  created  by  the  Charter,  they  ought  (as  being  the 
Creature  of  the  Charter)  to  be  restrained  from  making  any  By- 
Laws  inconsistent  with  it,  or  counteracting  the  End  Intention 
and  Directions  of  it:  Though  it  may  not  be  unreasonable  to 
allow  a  greater  Latitude  in  making  By-Laws  for  the  Good  of  the 
Corporation,  to  the  Common-Council  of  a  Corporation  by  Pre- 
scription, where  the  Common-Council  is  by  Prescription,  and  such 
Prescription  authorizes  them  to  make  By-Laws  for  the  Good  of 
the  Corporation.  Per  Cur',  unanimously  — 

Judgment  of  Ouster. 


CAMPBELL  V.   HALL. 

King's  Bench.     1774. 

[Cowper,  204.]^ 

This  was  an  action  of  money  had  and  received,  brought  to 
recover  export  duties  which  had  been  exacted  from  the  plaintiff 

*  s.  c.  Lofft,  655,  and  also  20  Howell's  State  Trials,  239,  in  which  latter  place 
the  arguments  of  counsel  are  given  in  extenso. 
The  statement  has  been  framed  from  the  opinion.  —  Ed. 


CAMPBELL   V.    HALL.  17 

by  the  defendant,  a  collector  for  the  King  of  Great  Britain  on  the 
island  of  Grenada.  A  special  verdict  was  found,  to  the  effect 
that  the  island  had  been  captured  from  the  French  and  had  been 
ceded  by  treaty  signed  Feb.  10,  1763,  that  by  proclamations  under 
the  great  seal,  dated  Oct.  7,  1763,  and  Apr.  9,  1764,  the  crown 
empowered  the  governor,  so  soon  as  the  state  of  the  island  should 
permit,  to  summon  a  general  assembly,  in  the  manner  used  in 
the  colonies  and  provinces  of  America,  such  assembly  to  make 
laws  with  consent  of  the  governor  and  council,  that  the  governor 
arrived  on  Dec.  14,  1764,  that  before  the  end  of  1765  an  assembly 
met,  but  that  before  the  governor  left  England  letters  patent 
under  the  great  seal,  dated  July  20,  1764,  directed  an  export  duty 
of  four  and  one  half  per  cent  upon  all  dead  commodities,  the 
produce  of  the  island,  and  that  the  defendant  as  collector  had 
collected  this  duty  from  the  plaintiff  and  still  retained  it  in  his 
hands. 

Lord  Mansfield,  C.  J.  .  .  .  The  general  question  that  arises 
out  of  all  these  facts  found  by  the  special  verdict,  is  this;  whether 
the  letters  patent  under  the  great  seal,  bearing  date  the  20th  July, 
1764,  are  good  and  valid  to  abolish  the  French  duties;  and  in  lieu 
thereof  to  impose  the  four  and  half  per  cent  duty  above  men- 
tioned, which  is  paid  in  all  the  British  Leeward  Islands  ? 

It  has  been  contended  at  the  bar,  that  the  letters  patent  are  void 
on  two  points;  the  first  is,  that  although  they  had  been  made 
before  the  proclamation  of  the  7th  October,  1763,  yet  the  king 
could  not  exercise  such  a  legislative  power  over  a  conquered 
country. 

The  second  point  is,  that  though  the  king  had  sufficient  power 
and  authority  before  the  7th  October,  1763,  to  do  such  legislative 
act,  yet  before  the  letters  patent  of  the  20th  July,  1764,  he  had 
divested  himself  of  that  authority.  .  .  . 

A  country  conquered  by  the  British  arms  becomes  a  dominion 
of  the  king  in  the  right  of  his  crown;  and,  therefore,  necessarily 
subject  to  the  legislature,  the  parliament  of  Great  Britain.  .  .  . 

If  the  king  (and  when  I  say  the  king,  I  always  mean  the  king 
without  the  concurrence  of  parliament)  has  a  power  to  alter  the 
old  and  to  introduce  new  laws  in  a  conquered  country,  this  legis- 
lation being  subordinate,  that  is,  subordinate  to  his  own  authority 
in  parliament,  he  cannot  make  any  new  change  contrary  to  fun- 
damental principles:  he  cannot  exempt  an  inhabitant  from  that 
particular  dominion;  as  for  instance,  from  the  laws  of  trade,  or 
from  the  power  of  parliament,  or  give  him  privileges  exclusive  of 


18  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

his  other  subjects;   and  so  in  many  other  instances  which  might 
be  put. 

But  the  present  change,  if  it  had  been  made  before  the  7th 
October,  1763,  would  have  been  made  recently  after  the  cession 
of  Grenada  by  treaty,  and  is  in  itself  most  reasonable,  equitable, 
and  political;  for  it  is  putting  Grenada,  as  to  duties,  on  the  same 
footing  with  all  the  British  Leeward  Islands.  If  Grenada  paid 
more  it  would  have  been  detrimental  to  her;  if  less,  it  must  be 
detrimental  to  the  other  Leeward  Islands:  nay,  it  would  have 
been  carrying  the  capitulation  into  execution,  which  gave  the 
people  of  Grenada  hopes,  that  if  any  new  tax  was  laid  on,  their 
case  would  be  the  same  with  their  fellow  subjects  in  the  other 
Leeward  Islands. 

The  only  question  then  on  this  first  point  is,  Whether  the 
king  had  a  power  to  make  such  change  between  the  10th  of  Feb- 
ruary, 1763,  the  day  the  treaty  of  peace  was  signed,  and  the  7th 
October,  1763  ?  Taking  these  propositions  to  be  true  whieh  I 
have  stated;  the  only  question  is.  Whether  the  king  had  of  him- 
self that  power  ? 

It  is  left  by  the  constitution  to  the  king's  authority  to  grant 
or  refuse  a  capitulation:  if  he  refuses,  and  puts  the  inhabitants 
to  the  sword  or  exterminates  them,  all  the  lands  belong  to  him. 
If  he  receives  the  inhabitants  under  his  protection  and  grants 
them  their  property,  he  has  a  power  to  fix  such  terms  and  con- 
ditions as  he  thinks  proper.  He  is  intrusted  with  making  the 
treaty  of  peace:  he  may  yield  up  the  conquest,  or  retain  it  upon 
what  terms  he  pleases.  These  powers  no  man  ever  disputed, 
neither  has  it  hitherto  been  controverted  that  the  king  might 
change  part  or  the  whole  of  the  law  or  political  form  of  govern- 
ment of  a  conquered  dominion.  .  .  . 

It  is  not  to  be  wondered  at  that  an  adjudged  case  in  point  has 
not  been  produced.  No  question  was  ever  started  before,  but 
that  the  king  has  a  right  to  a  legislative  authority  over  a  con- 
quered country;  it  was  never  denied  in  Westminster-hall;  it 
never  was  questioned  in  parliament.  Coke's  Report  of  the 
arguments  and  resolutions  of  the  judges  in  Calvin's  case  lays  it 
down  as  clear.  If  a  king  (says  the  book)  comes  to  a  kingdom  by 
conquest,  he  may  change  and  alter  the  laws  of  that  kingdom; 
but  if  he  comes  to  it  by  title  and  descent,  he  cannot  change  the 
laws  of  himself  without  the  consent  of  parliament  (7  Rep.  17  b). 
It  is  plain  he  alludes  to  his  own  country,  because  he  alludes  to  a 
country  where  there  is  a  parliament. 


CAMPBELL   V.    HALL.  19 

The  authority  also  of  two  great  names  has  been  cited,  who 
take  the  proposition  for  granted.  In  the  year  1722,  the  asseml)ly 
of  Jamaica  being  refractory,  it  was  referred  to  Sir  Philip  Yorke 
and  Sir  Clement  Wearge,  to  know  "  what  could  be  done  if  the 
assembly  should  obstinately  continue  to  withold  all  the  usual 
supplies."  They  reported  thus:  "  If  Jamaica  was  still  to  be 
considered  as  a  conquered  island,  the  king  had  a  right  to  levy 
taxes  upon  the  inhabitants;  but  if  it  was  to  be  considered  in 
the  same  light  as  the  other  colonies,  no  tax  could  be  imposed  on 
the  inhabitants  but  by  an  assembly  of  the  island,  or  by  an  act  of 
parUament."  .  .  . 

A  maxim  of  constitutional  law  as  declared  by  all  the  judges  in 
Calvin's  case,  and  which  two  such  men,  in  modern  times,  as  Sir 
Philip  Yorke  and  Sir  Clement  Wearge,  took  for  granted,  will 
require  some  authorities  to  shake. 

But  on  the  other  side,  no  book,  no  saying,  no  opinion  has  been 
cited;  no  instance  in  any  period  of  history  produced,  where  a 
doubt  has  been  raised  concerning  it.  The  counsel  for  the  plain- 
tiff no  doubt  labored  this  point  from  a  diffidence  of  what  might 
be  our  opinion  on  the  second  question.  But  upon  the  second 
point,  after  full  consideration  we  are  of  opinion,  that  before  the 
letters  patent  of  the  20th  July,  1764,  the  king  had  precluded  him- 
self from  the  exercise  of  a  legislative  authority  over  the  island 
of  Grenada. 

The  first  and  material  instrument  is  the  proclamation  of  the 
7th  October,  1763.  See  what  it  is  that  the  king  there  says,  with 
what  view,  and  how  he  engages  himself  and  pledges  his  word. 

"  For  the  better  security  of  the  Uberty  and  property  of  those 
who  are  or  shall  become  inhabitants  of  our  island  of  Grenada, 
we  have  declared  by  this  our  proclamation,  that  we  have  com- 
missioned our  governor  (as  soon  as  the  state  and  circumstances 
of  the  colony  will  admit)  to  call  an  assembly  to  enact  laws,"  &c. 
With  what  view  is  this  made  ?  It  is  to  invite  settlers  and  subjects: 
and  why  to  invite  ?  That  they  might  think  their  properties, 
&c.  more  secure  if  the  legislation  was  vested  in  an  assembly,  than 
under  a  governor  and  council  only. 

Next,  having  established  the  constitution,  the  proclamation  of 
the  20th  March,  1764,  invites  them  to  come  in  as  purchasers: 
in  further  confirmation  of  all  this,  on  the  9th  April,  1764,  three 
months  before  July,  an  actual  commission  is  made  out  to  the 
governor  to  call  an  assembly  as  soon  as  the  state  of  the  island 
would  admit  thereof.     You  observe,  there  is  no  reservation  in  the 


20  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

proclamation  of  any  legislature  to  be  exercised  by  the  king,  or  by 
the  governor  and  council  under  his  authority  in  any  manner, 
until  the  assembly  should  meet;  but  rather  the  contrary:  for 
whatever  construction  is  to  be  put  upon  it,  which,  perhaps,  may 
be  very  difficult  through  all  the  cases  to  whi.;h  it  may  be  applied, 
it  alludes  to  a  government  by  laws  in  being,  and  by  courts  of 
justice,  not  by  a  legislative  authority,  until  an  assembly  should 
be  called.  There  does  not  appear  from  the  special  verdict  any 
impediment  to  the  calling  an  assembly  immediately  on  the  arrival 
of  the  governor,  which  was  in  December,  1764.  But  no  assembly 
was  called  then  or  at  any  time  afterwards,  till  the  end  of  the  year 
1765. 

We  therefore  think  that  by  the  two  proclamations  and  the 
commission  to  governor  Melville,  the  king  had  immediately  and 
irrecoverably  granted  to  all  who  were  or  should  become  inhabi- 
tants, or  who  had,  or  should  acquire  property  in  the  island  of 
Grenada,  or  more  generally  to  all  whom  it  might  concern,  that 
the  subordinate  legislation  over  the  island  should  be  exercised  by 
an  assembly  with  the  consent  of  the  governor  and  council,  in 
like  manner  as  the  other  islands  belonging  to  the  king. 

Therefore,  though  the  abolishing  the  duties  of  the  French  king 
and  the  substituting  this  tax  in  its  stead,  which  according  to  the 
finding  in  this  special  verdict  is  paid  in  all  the  British  Leeward 
Islands,  is  just  and  equitable  with  respect  to  Grenada  itself,  and 
the  other  British  Leeward  Islands,  yet,  through  the  inattention 
of  the  king's  servants,  in  inverting  the  order  in  which  the  instru- 
ments should  have  passed,  and  been  notoriously  published,  the 
last  act  is  contradictory  to,  and  a  violation  of  the  first,  and  is, 
therefore,  void.  How  proper  soever  it  may  be  in  respect  to  the 
object  of  the  letters  patent  of  the  20th  July,  1764,  to  use  the  words 
of  Sir  Philip  Yorke  and  Sir  Clement  Wearge,  "  it  can  only  now  be 
done,  by  the  assembly  of  the  island,  or  by  an  act  of  the  parliament 
of  Great  Britain." 

The  consequence  is,  judgment  must  be  given  for  the  plaintiff.^ 

*  As  to  the  exercise  of  the  powers  of  municipal  government  by  an  occupying 
army,  see  New  Orleans  v.  Steamship  Co.,  20  Wall.  387  (1874). 

As  to  the  power  of  the  President  to  estabhsh  provisional  courts  in  acquired 
territory,  see  Cross  v.  Harrison,  16  How.  164  (1853)  (California) ;  Leitensdorfer 
V.  Webb,  20  How.  176  (1857)  (New  Mexico);  Santiago  v.  Nogueras,  214 
U.  S.  260  (1909)  (Porto  Rico).  —Ed. 


HOLMES   V.   WALTON.  21 

HOLMES  V.  WALTON. 
Supreme  Court  of  New  Jersey.     1780. 

[4  American  Historical  Review,  456.) ' 

Certiorari  to  a  justice  of  the  peace. 

Walton,  acting  under  a  New  Jersey  statute  passed  Oct.  8,  1778, 
which  made  it  lawful  for  any  person  to  seize  goods  brought  into 
the  American  lines  from  any  place  in  possession  of  the  British, 
and  which  gave  the  proceeds  of  the  goods  to  the  person  making 
the  seizure,  had  seized  goods  in  possession  of  Holmes  and  Ketcham, 
and,  in  conformity  to  the  statute,  had  taken  the  goods  before  a 
justice  of  the  peace.  The  statute  required  the  justice,  on  the 
demand  of  either  party,  to  grant  a  jury  of  six  men;  and  in  case 
of  a  verdict  it  forbade  an  appeal.  After  verdict  of  a  jury  of  six 
men  in  favor  of  Walton,  the  justice  of  the  peace  gave  judgment 
accordingly. 

Willcocks,  for  the  plaintiffs  in  certiorari.  .  .  .  The  jury  sworn 
to  try  the  above  cause  and  on  whose  verdict  judgment  was  entered 
consisted  of  six  men  only,  when  by  the  laws  of  the  land  it  should 
have  consisted  of  twelve  men.  .  .  .  The  jury  who  tried  the  said 
plaint  before  the  said  justice  consisted  of  six  men  only  contrary 
to  the  constitution  of  New  Jersey.  .  .  .^ 

*  The  report  here  given  is  condensed  from  the  more  extended  report  given 
by  Professor  Austin  Scott  in  the  American  Historical  Review,  and  the  two 
succeeding  notes  are  from  the  same  source.  —  Ed. 

^  Section  XXII  of  the  constitution  of  New  Jersey,  adopted  July  2,  1776, 
reads  as  follows:  "  That  the  common  law  of  England,  as  well  as  so  much  of 
the  statute  law  as  have  been  heretofore  practised  in  this  colony  shall  still 
remain  in  force  until  they  shall  be  altered  by  a  future  law  of  the  legislature; 
such  parts  only  excepted  as  are  repugnant  to  the  rights  and  privileges  con- 
tained in  this  Charter;  and  that  the  inestimable  right  of  trial  by  jury  shall 
remain  confirmed  as  a  part  of  the  law  of  this  colony,  without  repeal  forever." 
The  first  section  of  the  same  constitution  prescribes  as  a  part  of  the  oath  to 
be  taken  by  each  member  of  the  legislature,  that  he  will  not  assent  to  any 
law,  vote,  or  proceeding  to  repeal  or  annul  "  that  part  of  the  twenty-second 
section  respecting  trial  by  jury." 

The  assumption  that  the  phrase  "  trial  by  jury  "  as  thus  used  means  exactly 
twelve  jurors  must  find  its  warrant  farther  back.  In  addition  to  immemorial 
custom,  the  "  common  law  "  of  England,  which  may  have  been  held  to  have 
had  validity  in  this  case,  two  documents  may  have  been  appealed  to  as  fun- 
damentally relevant  and  as  constituting  in  New  Jersey  a  part  of  the  "  law  of 
the  land":  the  first.  Chapter  XXII  of  the  West  Jersey  "  Concessions  and 
Agreements  "  of  1676,  "  Not  to  be  altered  by  the  legislative  authority,"  which 
begins  thus,  "  That  the  trial  of  all  causes,  civil  and  criminal,  shall  be  heard 
and  decided  by  the  verdict  or  judgment  of  twelve  honest  men  of  the  neighbor- 


22-  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

Curia  advisare  vult. 

Minute,  Sept.  7,  1780:  — 

This  cause  having  been  argued  several  terms  past  and  the  court  ^ 
having  taken  time  to  consider  the  same,  and  being  now  ready- 
to  dehver  their  opinion,  gave  the  same  seriation  for  the  plaintiffs 
in  certiorari.  And  on  motion  of  Boudinot  for  the  plaintiffs, 
judgment  is  ordered  for  the  plaintiffs,  and  that  the  judgment  of 
the  justice  in  the  court  below  be  reversed  and  the  said  plaintiffs 
be  restored  to  all  things,  etc. 


HAYBURN'S  CASE. 
Supreme  Court  of  the  United  States.     1792. 

[2  Dallas,  409.] 

This  was  a  motion  for  a  mandamus  to  be  directed  to  the  Circuit 
Court  for  the  District  of  Pennsylvania,  commanding  the  said 
court  to  proceed  in  a  certain  petition  of  Wm.  Hayburn,  who  had 
appHed  to  be  put  on  the  pension  list  of  the  United  States,  as  an 
invalid  pensioner. 

The  principal  case  arose  upon  the  act  of  Congress  passed  the 
23d  of  March,  1792.^ 

The  Attorney  General  (Randolph),  for  the  motion.  .  .  . 

The  Court  observed,  that  they  would  hold  the  motion  under 
advisement,  until  the  next  term;  but  no  decision  was  ever  pro- 
nounced, as  the  Legislature,  at  an  intermediate  session,  provided, 
in  another  way,^  for  the  relief  of  the  pensioners.'' 

hood."  The  second  was  a  formal  declaration  of  the  "  Rights  and  Privileges  " 
passed  by  the  House  of  Representatives  in  East  Jersey  on  March  13th,  1699, 
and  accepted  by  the  governor  and  council,  which  asserted  that  "  all  trials 
shall  be  by  the  verdict  of  twelve  men."  Other  acts  of  the  assembly  in  each 
of  the  two  Jersey  provinces  before  their  union  in  1702,  show  that  the  right  to 
a  trial  before  a  jury  of  twelve  men  was  regarded  as  fundamental;  notably 
the  act  of  November,  1681,  in  West  Jersey,  and  that  of  March,  1683,  in  East 
Jersey.     Learning  and  Spicer,  Grants  and  Concessions,  pp.  235,  428.  —  Rep. 

^  A  full  bench  was  present,  David  Brearly,  the  Chief  Justice,  with  Isaac 
Smith  and  John  Cleves  Symmes,  his  associates.  —  Rep. 

2  1  U.  S.  St.  at  Large,  243.  —  Ed.  «  1  U.  S.  St.  at  Large,  325.  —  Ed. 

*  The  Circuit  court  for  the  district  of  New  York  (consisting  of  Jay,  Chief 
Justice,  CusHiNG,  Justice,  and  Duane,  District  Judge)  proceeded  on  the 


MARBURY   V.    MADISON.  23 

MARBURY  V.  MADISON,  Secretary  of  State  of  the 
United  States. 

Supreme  Court  of  the  United  States.     1803. 

[1  Crunch,  137.]  i 

At  December  term,  1801,  Marbury,  by  his  counsel,  Charles 
Lee,  lately  Attorney  General,  moved  the  court  for  a  rule  to  James 

5th  of  April,  1791,  to  take  into  consideration  the  act  of  Congress  entitled 
"  An  act  to  provide  for  the  settlement  of  the  claims  of  widows  and  orphans 
barred  by  the  limitations  heretofore  established,  and  to  regulate  the  claims  to 
invalid  pensions,"  and  were,  thereupon,  unanimously,  of  opinion  and  agreed. 

"  That  by  the  Constitution  of  the  United  States,  the  government  thereof 
is  divided  into  three  distinct  and  independent  branches,  and  that  it  is  the  duty 
of  each  to  abstain  from,  and  to  oppose,  encroachments  on  either. 

"  That  neither  the  Legislative  not  the  Executive  branches  can  constitu- 
tionally assign  to  the  Judicial  any  duties,  but  such  as  are  properly  judicial, 
and  to  be  performed  in  a  judicial  manner. 

"  That  the  duties  assigned  to  the  Circuit  courts,  by  this  act,  are  not  of  that 
description,  and  that  the  act  itself  does  not  appear  to  contemplate  them  as 
such;  in  as  much  as  it  subjects  the  decisions  of  these  courts,  made  pursuant 
to  those  duties,  first  to  the  consideration  and  suspension  of  the  Secretary  of 
War,  and  then  to  the  revision  of  the  Legislature;  whereas  by  the  Constitution, 
neither  the  Secretary  at  War,  nor  any  other  Executive  officer,  nor  even  the 
Legislature,  are  authorized  to  sit  as  a  court  of  errors  on  the  judicial  acts  or 
opinions  of  this  court. 

"As,  therefore,  the  business  assigned  to  this  court,  by  the  act,  is  not  judi- 
cial, nor  directed  to  be  performed  judicially,  the  act  can  only  be  considered 
as  appointing  commissioners  for  the  purposes  mentioned  in  it,  by  official  instead 
of  personal  descriptions. 

"That  the  Judges  of  this  court  regard  themselves  as  being  the  commissioners 
designated  by  the  act,  and  therefore  as  being  at  liberty  to  accept  or  decUne 
that  office. 

"  That  as  the  objects  of  this  act  are  exceedingly  benevolent,  and  do  real 
honor  to  the  humanity  and  justice  of  Congress;  and  as  the  Judges  desire  to 
manifest,  on  all  proper  occasions,  and  in  every  proper  manner,  their  high 
respect  for  the  National  Legislature,  they  will  execute  this  act  in  the  capacity 
of  commissioners."  .  .  . 

The  Circuit  court  for  the  district  of  Pennsylvania  (consisting  of  Wilson 
and  Blair,  Justices,  and  Peters,  District  Judge)  made  the  following  repre- 
sentation, in  a  letter  jointly  addressed  to  the  President  of  the  United  States, 
on  the  18th  of  April,  1792. 

"  To  you  it  officially  belongs  to  '  take  care  that  the  laws '  of  the  United 
States  '  be  faithfully  executed.'     Before  you,  therefore,  we  think  it  our  duty 


^  A  short  statement  has  been  substituted  for  the  one  in  the  original  rep)ort. 
—  Ed. 


24  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

Madison,  Secretary  of  State,  to  show  cause  why  a  mandamus 
should  not  issue  commanding  him  to  cause  to  be  delivered  a 

to  lay  the  sentiments,  which,  on  a  late  painful  occasion,  governed  us  with 
regard  to  an  act  passed  by  the  legislature  of  the  union. 

"  The  people  of  the  United  States  have  vested  in  Congress  all  legislative 
powers  '  granted  in  the  constitution.' 

"  They  have  vested  in  one  Supreme  court,  and  in  such  inferior  courts  as  the 
Congress  shall  establish,  '  the  judicial  power  of  the  United  States.' 

"  It  is  worthy  of  remark,  that  in  Congress,  the  whole  legislative  power  of 
the  United  States  is  not  vested.  An  important  part  of  that  power  was  exer- 
cised by  the  people  themselves,  when  they  '  ordained  and  estabhshed  the 
Constitution.' 

"  This  Constitution  is  *  the  Supreme  Law  of  the  Land.'  This  supreme 
law  '  all  judicial  officers  of  the  United  States  are  bound,  by  oath  or  affirmation, 
to  support.' 

"  It  is  a  principle  important  to  freedom,  that  in  government,  the  judicial 
should  be  distinct  from,  and  independent  of,  the  legislative  department.  To 
this  important  principle  the  people  of  the  United  States,  in  forming  their 
Constitution,  have  manifested  the  highest  regard. 

"  They  have  placed  their  judicial  power  not  in  Congress,  but  in  '  courts.' 
They  have  ordained  that  the  '  Judges  of  those  courts  shall  hold  their  offices 
during  good  behaviour,'  and  that  '  during  their  continuance  in  office,  their 
salaries  shall  not  be  diminished.' 

"  Congress  have  lately  passed  an  act,  to  regulate,  among  other  things, 
*  the  claims  to  invahd  pensions.' 

"  Upon  due  consideration,  we  have  been  unanimously  of  opinion,  that, 
under  this  act,  the  Circuit  court  held  for  the  Pennsylvania  district  could  not 
proceed; 

"  1st.  Because  the  business  directed  by  this  act  is  not  of  a  judicial  nature. 
It  forms  no  part  of  the  power  vested  by  the  Constitution  in  the  courts  of  the 
United  States;  the  Circuit  court  must,  consequently,  have  proceeded  vnthout 
constitutional  authority. 

"  2d.  Because,  if,  upon  that  business,  the  court  had  proceeded,  its  judg- 
ments (for  its  opinions  are  its  judgments)  might,  under  the  same  act,  have 
been  revised  and  controuled  by  the  legislature,  and  by  an  officer  in  the  execu- 
tive department.  Such  revision  and  controul  we  deemed  radically  inconsis- 
tent with  the  independence  of  that  judicial  power  which  is  vested  in  the  courts; 
and,  consequently,  with  that  important  principle  which  is  so  strictly  observed 
by  the  Constitution  of  the  United  States. 

"  These,  Sir,  are  the  reasons  of  our  conduct.  Be  assured  that,  though  it 
became  necessary,  it  was  far  from  being  pleasant.  To  be  obUged  to  act  con- 
trary, either  to  the  obvious  directions  of  Congress,  or  to  a  constitutional 
principle,  in  our  judgment  equally  obvious,  excited  feelings  in  us,  which  we 
hope  never  to  experience  again." 

The  Circuit  court  for  the  district  of  North  Carohna  (consisting  of  Iredell, 
Justice,  and  Sitgreaves,  District  Judge)  made  the  following  representation 
in  a  letter  jointly  addressed  to  the  President  of  the  United  States,  on  the  8th 
of  June,  1792:— 


MARBURY   V.    MADISON.  25 

commission  as  justice  of  the  peace  of  the  District  of  Columbia. 
There  were  affidavits  tending  to  show  among  other  things  that 

"  We,  the  judges  now  attending  at  the  Circuit  court  of  the  United  States 
for  the  district  of  North  Carohna,  conceive  it  our  duty  to  lay  before  you  some 
important  observations  which  have  occurred  to  us  in  the  consideration  of  an 
act  of  Congress  lately  passed,  entitled  '  an  act  to  provide  for  the  settlement 
of  the  claims  of  widows  and  orphans  barred  by  the  limitations  heretofore 
established,  and  to  regulate  the  claims  to  invalid  pensions.' 

"  We  beg  leave  to  premise,  that  it  is  as  much  our  inclination,  as  it  is  our 
duty,  to  receive  with  all  possible  respect,  every  act  of  the  Legislature,  and 
that  we  never  can  find  ourselves  in  a  more  painful  situation  than  to  be  obliged 
to  object  to  the  execution  of  any,  more  especially  to  the  execution  of  one 
founded  on  the  purest  principles  of  humanity  and  justice,  which  the  act  in 
question  undoubtedly  is.  But,  however  lamentable  a  difference  in  opinion 
really  may  be,  or  with  whatever  difficulty  we  may  have  formed  an  opinion, 
we  are  under  the  indispensable  necessity  of  acting  according  to  the  best  dictates 
of  our  own  judgment,  after  duly  weighing  every  consideration  that  can  occur 
to  us;  which  we  have  done  on  the  present  occasion. 

"  The  extreme  importance  of  the  case,  and  our  desire  of  being  explicit 
beyond  the  danger  of  being  misunderstood,  will,  we  hope,  justify  us  in  stating 
our  observations  in  a  systematic  manner.  We  therefore.  Sir,  submit  to  you 
the  following:  — 

"  1.  That  the  Legislative,  Executive,  and  Judicial  departments  are  each 
formed  in  a  separate  and  independent  manner;  and  that  the  ultimate  basis 
of  each  is  the  Constitution  only,  within  the  limits  of  which  each  department 
can  alone  justify  any  act  of  authority. 

"  2.  That  the  Legislature,  among  other  important  powers,  unquestionably 
possess  that  of  establishing  courts  in  such  a  manner  as  to  their  wisdom  shall 
appear  best,  limited  by  the  terms  of  the  constitution  only;  and  to  whatever 
extent  that  power  may  be  exercised,  or  however  severe  the  duty  they  may 
think  proper  to  require,  the  Judges,  when  appointed  in  virtue  of  any  such 
establishment,  owe  implicit  and  unreserved  obedience  to  it. 

"  3.  That  at  the  same  time  such  courts  cannot  be  warranted,  as  we  con- 
ceive, by  virtue  of  that  part  of  the  Constitution  delegating  Judicial  power, 
for  the  exercise  of  which  any  act  of  the  legislature  is  provided,  in  exercising 
(even  under  the  authority  of  another  act)  any  power  not  in  its  nature  judicial, 
or,  injudicial,  not  provided  for  upon  the  terms  the  Constitution  requires. 

"  4.  That  whatever  doubt  may  be  suggested,  whether  the  power  in  question 
is  properly  of  a  judicial  nature,  yet  inasmuch  as  the  decision  of  the  court  is 
not  made  final,  but  may  be  at  least  suspended  in  its  operation  by  the  Secretary 
at  War,  if  he  shall  have  cause  to  suspect  imposition  or  mistake;  this  subjects 
the  decision  of  the  court  to  a  mode  of  revision  which  we  consider  to  be  un- 
warranted by  the  Constitution;  for,  though  Congress  may  certainly  establish, 
in  instances  not  yet  provided  for,  courts  of  appellate  jurisdiction,  yet  such 
courts  must  consist  of  judges  appointed  in  the  manner  the  Constitution 
requires,  and  holding  their  offices  by  no  other  tenure  than  that  of  their  good 
behaviour,  by  which  tenure  the  office  of  Secretary  at  War  is  not  held.  And 
we  beg  leave  to  add,  with  all  due  deference,  that  no  decision  of  any  court  of 
the  United  States  can,  under  any  circumstances,  in  our  opinion,  agreeable  to 
the  Constitution,  be  liable  to  a  reversion,  or  even  suspension,  by  the  Legisla- 


26  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

John  Adams,  lately  President,  nominated  the  applicant  to  the 
Senate  for  advice  and  consent  to  be  appointed  such  justice  of  the 
peace,  that  the  Senate  advised  and  consented  to  the  appointment, 
that  a  commission  was  signed  by  such  President,  that  the  seal  of 
the  United  States  was  affixed  by  John  Marshall,  Secretary  of 

ture  itself,  in  whom  no  judicial  power  of  any  kind  appears  to  be  vested,  but  the 
important  one  relative  to  impeachments. 

"  These,  sir,  are  our  reasons  for  being  of  opinion,  as  we  are  at  present,  that 
this  Circuit  court  cannot  be  justified  in  the  execution  of  that  part  of  the  act, 
which  requires  it  to  examine  and  report  an  opinion  on  the  unfortunate  cases 
of  officers  and  soldiers  disabled  in  the  service  of  the  United  States.  .  .  . 

"  The  high  respect  we  entertain  for  the  Legislature,  our  feelings  as  men 
for  persons,  whose  situation  requires  the  earUest,  as  well  as  the  most  effectual 
rehef,  and  our  sincere  desire  to  promote,  whether  officially  or  otherwise,  the 
just  and  benevolent  views  of  Congress,  so  conspicuous  on  the  present  as  well 
as  on  many  other  occasions,  have  induced  us  to  reflect,  whether  we  could  be 
justified  in  acting,  under  this  act,  personally  in  the  character  of  commissioners 
during  the  session  of  a  court;  and  could  we  be  satisfied  that  we  had  authority 
to  do  so,  we  would  cheerfully  devote  such  part  of  our  time  as  might  be  neces- 
sary for  the  performance  of  the  service.  But  we  confess  we  have  great  doubts 
on  this  head.  The  power  appears  to  be  given  to  the  court  only,  and  not  to 
the  Judges  of  it;  and  as  the  Secretary  at  War  has  not  a  discretion  in  all  instan- 
ces, but  only  in  those  where  he  has  cause  to  suspect  imposition  or  mistake, 
to  with-hold  a  person  recommended  by  the  court  from  being  named  on  the 
pension  fist,  it  would  be  necessary  for  us  to  be  well  persuaded  we  possessed 
such  an  authority,  before  we  exercised  a  power,  which  might  be  a  means  of 
drawing  money  out  of  the  pubHc  treasury  as  effectually  as  an  express  appro- 
priation by  law.  We  do  not  mean,  however,  to  preclude  ourselves  from  a  very 
deUberate  consideration,  whether  we  can  be  warranted  in  executing  the 
purposes  of  the  act  in  that  manner,  in  case  an  apphcation  should  be  made. 

"  No  apphcation  has  yet  been  made  to  the  court,  or  to  ourselves  individu- 
ally, and  therefore  we  have  had  some  doubts  as  to  the  propriety  of  giving  an 
opinion  in  a  case  which  has  not  yet  come  regularly  and  judicially  before  us. 
None  can  be  more  sensible  than  we  are  of  the  necessity  of  judges  being  in 
general  extremely  cautious  in  not  intimating  an  opinion  in  any  case  extra- 
judicially, because  we  well  know  how  hable  the  best  minds  are,  notwithstand- 
ing their  utmost  care,  to  a  bias,  which  may  arise  from  a  pre-conceived  opinion, 
even  unguardedly,  much  more  dehberately,  given:  But  in  the  present  instance, 
as  many  unfortunate  and  meritorious  individuals,  whom  Congress  have 
justly  thought  proper  objects  of  immediate  rehef,  may  suffer  great  distress 
even  by  a  short  delay,  and  may  be  utterly  ruined  by  a  long  one,  we  determined 
at  all  events  to  make  our  sentiments  known  as  early  as  possible,  considering 
this  as  a  case  which  must  be  deemed  an  exception  to  the  general  rule,  upon 
every  principle  of  humanity  and  justice;  resolving  however,  that  so  far  as 
we  are  concerned  individually,  in  case  an  application  should  be  made,  we  will 
most  attentively  hear  it;  and  if  we  can  be  convinced  this  opinion  is  a  wrong 
one,  we  shall  not  hesitate  to  act  accordingly.  .  .  ."  —  Rep. 

See  Yale  v.  Todd,  13  How.  52,  note  (1794);  and  United  States  t;.  Ferreira, 
13  How.  40,  49-51  (1851).  —  Ed. 


MARBURY   V.    MADISON.  27 

State,  that  the  applicant  requested  James  Madison,  Secretary  of 
State,  to  deliver  the  commission,  that  Mr.  Madison  did  not  comply, 
and  that  Mr.  Madison  had  notice  of  this  motion.  A  rule  was 
granted  to  show  cause  the  fourth  day  of  next  term. 

At  such  next  term,  being  February  term,  1803,  no  cause  having 
been  shown,  there  was  a  motion  for  a  mandamus.  After  affidavits 
and  oral  testimony,  with  argument  in  behalf  of  the  applicant  by 
Charles  Lee,  the  opinion  of  the  court  was  delivered  on  February 
24,  1803,  by 

Marshall,  C.  J.  .  .  .  In  the  order  in  which  the  court  has 
viewed  this  subject,  the  following  questions  have  been  considered 
and  decided:  1st.  Has  the  applicant  a  right  to  the  commission 
he  demands  ?  2d.  If  he  has  a  right,  and  that  right  has  been 
violated,  do  the  laws  of  his  country  afford  him  a  remedy  ?  3d. 
If  they  do  afford  him  a  remedy,  is  it  a  mandamus  issuing  from 
this  court  ?  .  .  . 

This,  then,  is  a  plain  case  for  a  mandamus,  either  to  deliver  the 
commission,  or  a  copy  of  it  from  the  record;  and  it  only  remains 
to  be  inquired, 

Whether  it  can  issue  from  this  court. 

The  act  to  establish  the  judicial  courts  of  the  United  States 
authorizes  the  supreme  court  "  to  issue  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages  of  law,  to  any  courts 
appointed,  or  persons  holding  office,  under  the  authority  of  the 
United  States." 

The  secretary  of  state,  being  a  person  holding  an  office  under 
the  authority  of  the  United  States,  is  precisely  within  the  letter 
of  the  description;  and  if  this  court  is  not  authorized  to  issue  a 
writ  of  mandamus  to  such  an  officer,  it  must  be  because  the  law 
is  unconstitutional,  and  therefore  absolutely  incapable  of  conferring 
the  authority,  and  assigning  the  duties  which  its  words  purport 
to  confer  and  assign. 

The  constitution  vests  the  whole  judicial  power  of  the  United 
States  in  one  supreme  court,  and  such  inferior  courts  as  congress 
shall,  from  time  to  time,  ordain  and  establish.  This  power  is 
expressly  extended  to  all  cases  arising  under  the  laws  of  the  United 
States;  and  consequently,  in  some  form,  may  be  exercised  over 
the  present  case;  because  the  right  claimed  is  given  by  a  law  of 
the  United  States. 

In  the  distribution  of  this  power  it  is  declared  that  the  supreme 
court  shall  have  original  jurisdiction  in  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  consuls,  and  those  in  which  a 


28  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

state  shall  be  a  party.  In  all  other  cases,  the  supreme  court  shall 
have  appellate  jurisdiction. 

It  has  been  insisted,  at  the  bar,  that  as  the  original  grant  of 
jurisdiction,  to  the  supreme  and  inferior  courts,  is  general,  and 
the  clause,  assigning  original  jurisdiction  to  the  supreme  court, 
contains  no  negative  or  restrictive  words;  the  power  remains  to 
the  legislature,  to  assign  original  jurisdiction  to  that  court  in  other 
cases  than  those  specified  in  the  article  which  has  been  recited; 
provided  those  cases  belong  to  the  judicial  power  of  the  United 
States. 

If  it  had  been  intended  to  leave  it  in  the  discretion  of  the  legis- 
lature to  apportion  the  judicial  power  between  the  supreme  and 
inferior  courts  according  to  the  will  of  that  body,  it  would  certainly 
have  been  useless  to  have  proceeded  further  than  to  have  defined 
the  judicial  power,  and  the  tribunals  in  which  it  should  be  vested. 
The  subsequent  part  of  the  section  is  mere  surplussage,  is  entirely 
without  meaning,  if  such  is  to  be  the  construction.  If  congress 
remains  at  liberty  to  give  this  court  appellate  jurisdiction,  where 
the  constitution  has  declared  their  jurisdiction  shall  be  original; 
and  original  jurisdiction  where  the  constitution  has  declared  it 
shall  be  appellate;  the  distribution  of  jurisdiction,  made  in  the 
constitution,  is  form  without  substance. 

Affirmative  words  are  often,  in  their  operation,  negative  of  other 
objects  than  those  affirmed;  and  in  this  case,  a  negative  or  ex- 
clusive sense  must  be  given  to  them  or  they  have  no  operation  at 
all. 

It  cannot  be  presumed  that  any  clause  in  the  constitution  is 
intended  to  be  without  effect;  and  therefore  such  a  construction 
is  inadmissible,  unless  the  words  require  it. 

If  the  solicitude  of  the  convention,  respecting  our  peace  with 
foreign  powers,  induced  a  provision  that  the  supreme  court  should 
take  original  jurisdiction  in  cases  which  might  be  supposed  to 
affect  them;  yet  the  clause  would  have  proceeded  no  further  than 
to  provide  for  such  cases,  if  no  further  restriction  on  the  powers 
of  congress  had  been  intended.  That  they  should  have  appellate 
jurisdiction  in  all  other  cases,  with  such  exceptions  as  congress 
might  make,  is  no  restriction;  unless  the  words  be  deemed  exclu- 
sive of  original  jurisdiction. 

When  an  instrument  organizing  fundamentally  a  judicial 
system,  divides  it  into  one  supreme,  and  so  many  inferior  courts 
as  the  legislature  may  ordain  and  establish;  then  enumerates  its 
powers,  and  proceeds  so  far  to  distribute  them,  as  to  define  the 


MARBURY   V.    MADISON.  29 

jurisdiction  of  the  supreme  court  by  declaring  the  cases  in  which 
it  shall  take  original  jurisdiction,  and  that  in  others  it  shall  take 
appellate  jurisdiction;  the  plain  import  of  the  words  seems  to  be, 
that  in  one  class  of  cases  its  jurisdiction  is  original,  and  not  appel- 
late; in  the  other  it  is  appellate,  and  not  original.  If  any  other 
construction  would  render  the  clause  inoperative,  that  is  an 
additional  reason  for  rejecting  such  other  construction,  and  for 
adhering  to  their  obvious  meaning. 

To  enable  this  court  then  to  issue  a  mandamus,  it  must  be  shown 
to  be  an  exercise  of  appellate  jurisdiction,  or  to  be  necessary  to 
enable  them  to  exercise  appellate  jurisdiction. 

It  has  been  stated  at  the  bar  that  the  appellate  jurisdiction 
may  be  exercised  in  a  variety  of  forms,  and  that  if  it  be  the  will 
of  the  legislature  that  a  mandamus  should  be  used  for  that  purpose, 
that  will  must  be  obeyed.  This  is  true,  yet  the  jurisdiction  must 
be  appellate,  not  original. 

It  is  the  essential  criterion  of  appellate  jurisdiction,  that  it 
revises  and  corrects  the  proceedings  in  a  cause  already  instituted, 
and  does  not  create  that  cause.  Although,  therefore,  a  mandamus 
may  be  directed  to  courts,  yet  to  issue  such  a  writ  to  an  officer 
for  the  delivery  of  a  paper,  is  in  effect  the  same  as  to  sustain  an 
original  action  for  that  paper,  and  therefore  seems  not  to  belong 
to  appellate,  but  to  original  jurisdiction.  Neither  is  it  necessary 
in  such  a  case  as  this,  to  enable  the  court  to  exercise  its  appellate 
jurisdiction. 

The  authority,  therefore,  given  to  the  supreme  court,  by  the 
act  establishing  the  judicial  courts  of  the  United  States,  to  issue 
writs  of  mandamus  to  public  officers,  appears  not  to  be  warranted 
by  the  constitution;  and  it  becomes  necessary  to  inquire  whether 
a  jurisdiction,  so  conferred,  can  be  exercised. 

The  question,  whether  an  act,  repugnant  to  the  constitution, 
can  become  the  law  of  the  land,  is  a  question  deeply  interesting 
to  the  United  States;  but,  happily,  not  of  an  intricacy  proportioned 
to  its  interest.  It  seems  only  necessary  to  recognize  certain 
principles,  supposed  to  have  been  long  and  well  established,  to 
decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their 
future  government,  such  principles,  as,  in  their  opinion,  shall 
most  conduce  to  their  own  happiness  is  the  basis,  on  which  the 
whole  American  fabric  has  been  erected.  The  exercise  of  this 
original  right  is  a  very  great  exertion;  nor  can  it  nor  ought  it  to 
be  frequently  repeated.    The  principles,  therefore,  so  established, 


30  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

are  deemed  fundamental.  And  as  the  authority  from  which  they 
proceed  is  supreme,  and  can  seldom  act,  they  are  designed  to  be 
permanent. 

This  original  and  supreme  will  organizes  the  government,  and 
assigns,  to  different  departments,  their  respective  powers.  It 
may  either  stop  here,  or  establish  certain  limits  not  to  be  tran- 
scended by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  description. 
The  powers  of  the  legislature  are  defined,  and  limited;  and  that 
those  limits  may  not  be  mistaken,  or  forgotten,  the  constitution 
is  written.  To  what  purpose  are  powers  limited,  and  to  what 
purpose  is  that  limitation  committed  to  writing,  if  these  limits 
may,  at  any  time,  be  passed  by  those  intended  to  be  restrained  ? 
The  distinction,  between  a  government  with  limited  and  unlimited 
powers,  is  abolished,  if  those  limits  do  not  confine  the  persons  on 
whom  they  are  imposed,  and  if  acts  prohibited  and  acts  allowed 
are  of  equal  obligation.  It  is  a  proposition  too  plain  to  be  con- 
tested, that  the  constitution  controls  any  legislative  act  repugnant 
to  it;  or,  that  the  legislature  may  alter  the  constitution  by  an 
ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground.  The 
constitution  is  either  a  superior,  paramount  law,  unchangeable 
by  ordinary  means,  or  it  is  on  a  level  with  ordinary  legislative  acts, 
and  like  other  acts,  is  alterable  when  the  legislature  shall  please 
to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legislative 
act  contrary  to  the  constitution  is  not  law:  if  the  latter  part  be 
true,  then  written  constitutions  are  absurd  attempts,  on  the  part 
of  the  people,  to  limit  a  power,  in  its  own  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitutions 
contemplate  them  as  forming  the  fundamental  and  paramount 
law  of  the  nation,  and  consequently  the  theory  of  every  such 
government  must  be,  that  an  act  of  the  legislature,  repugnant 
to  the  constitution,  is  void. 

This  theory  is  essentially  attached  to  a  written  constitution, 
and  is  consequently  to  be  considered,  by  this  court,  as  one  of  the 
fundamental  principles  of  our  society.  It  is  not  therefore  to  be 
lost  sight  of  in  the  future  consideration  of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  constitution,  is 
void,  does  it,  notwithstanding  its  invalidity,  bind  the  courts,  and 
oblige  them  to  give  it  effect  ?  Or,  in  other  words,  though  it  be 
not  law,  does  it  constitute  a  rule  as  operative  as  if  it  was  a  law  ? 


MARBURY   V.   MADISON.  31 

This  would  be  to  oyerthrow  in  fact  what  was  established  in  theory; 
and  would  seem,,  at  first  view,  an  absurdity  too  gross  to  be  insisted 
on.     It  shall,  however,  receive  a  more  attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  depart- 
ment to  say  what  the  law  is.  Those  who  apply  the  rule  to  par- 
ticular cases  must  of  necessity  expound  and  interpret  that  rule. 
If  two  laws  conflict  with  each  other,  the  courts  must  decide  on  the 
operation  of  each. 

So  if  a  law  be  in  opposition  to  the  constitution;  if  both  the  law 
and  the  constitution  apply  to  a  particular  case,  so  that  the  court 
must  either  decide  that  case  conformably  to  the  law,  disregarding 
the  constitution;  or  conformably  to  the  constitution,  disregarding 
the  law;  the  court  must  determine  which  of  these  conflicting 
rules  governs  the  case.  This  is  of  the  very  essence  of  judicial 
duty. 

If  then  the  courts  are  to  regard  the  constitution;  and  the  con- 
stitution is  superior  to  any  ordinary  act  of  the  legislature;  the 
constitution,  and  not  such  ordinary  act,  must  govern  the  case  to 
which  they  both  apply. 

Those  then  who  controvert  the  principle  that  the  constitution 
is  to  be  considered,  in  court,  as  a  paramount  law,  are  reduced  to 
the  necessity  of  maintaining  that  courts  must  close  their  eyes  on 
the  constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written 
constitutions.  It  would  declare  that  an  act,  which,  according  to 
the  principles  and  theory  of  our  government,  is  entirely  void,  is 
yet,  in  practice,  completely  obligatory.  It  would  declare,  that 
if  the  legislature  shall  do  what  is  expressly  forbidden,  such  act, 
notwithstanding  the  express  prohibition,  is  in  reality  effectual. 
It  would  be  giving  to  the  legislature  a  practical  and  real  omnipo- 
tence, with  the  same  breath  which  professes  to  restrict  their  powers 
within  narrow  limits.  It  is  prescribing  limits,  and  declaring  that 
those  limits  may  be  passed  at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the 
greatest  improvement  on  political  institutions  —  a  written  con- 
stitution —  would  of  itself  be  sufficient,  in  America,  where  written 
constitutions  have  been  viewed  with  so  much  reverence,  for 
rejecting  the  construction.  But  the  peculiar  expressions  of  the 
constitution  of  the  United  States  furnish  additional  arguments 
in  favor  of  its  rejection. 

The  judicial  power  of  the  United  States  is  extended  to  all  cases 
arising  under  the  constitution. 


32  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say- 
that,  in  using  it,  the  constitution  should  not  be  looked  into  ?  That 
a  case  arising  under  the  constitution  should  be  decided  without 
examining  the  instrument  under  which  it  arises  ? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases  then,  the  constitution  must  be  looked  into  by  the 
judges.  And  if  they  can  open  it  at  all,  what  part  of  it  are  they 
forbidden  to  read,  or  to  obey  ? 

There  are  many  other  parts  of  the  constitution  which  serve  to 
illustrate  this  subject. 

It  is  declared  that  "  no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  state."  Suppose  a  duty  on  the  export  of  cotton, 
of  tobacco,  or  of  flour;  and  a  suit  instituted  to  recover  it.  Ought 
judgment  to  be  rendered  in  such  a  case  ?  ought  the  judges  to  close 
their  eyes  on  the  constitution,  and  only  see  the  law? 

The  constitution  declares  that  "  no  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed  and  a  person  should 
be  prosecuted  under  it;  must  the  court  condemn  to  death  those 
victims  whom  the  constitution  endeavors  to  preserve  ? 

"  No  person,"  says  the  constitution,  "  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court." 

Here  the  language  of  the  constitution  is  addressed  especially 
to  the  courts.  It  prescribes,  directly  for  them,  a  rule  of  evidence 
not  to  be  departed  from.  If  the  legislature  should  change  that 
rule,  and  declare  one  witness,  or  a  confession  out  of  court,  sufficient 
for  conviction,  must  the  constitutional  principle  yield  to  the 
legislative  act  ? 

From  these,  and  many  other  selections  which  might  be  made, 
it  is  apparent  that  the  framers  of  the  constitution  contemplated 
that  instrument  as  a  rule  for  the  government  of  courts,  as  well 
as  of  the  legislature. 

Why  otherwise  does  it  direct  the  judges  to  take  an  oath  to 
support  it  ?  This  oath  certainly  applies,  in  an  especial  manner, 
to  their  conduct  in  their  official  character.  How  immoral  to 
impose  it  on  them,  if  they  were  to  be  used  as  the  instruments, 
and  the  knowing  instruments,  for  violating  what  they  swear  to 
support  ? 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  completely 
demonstrative  of  the  legislative  opinion  on  this  subject.  It  is  in 
these  words,  "  I  do  solemnly  swear  that  I  will  administer  justice 


MARTIN   V.    MOTT.  33 

without  respect  to  persons,  and  do  equal  right  to  the  poor  and  to 
the  rich;  and  that  I  will  faithfully  and  impartially  discharge  all 
the  duties  incumbent  on  me  as  according  to  the 

best  of  my  abilities  and  understanding,  agreeably  to  the  constititr 
tion,  and  laws  of  the  United  States." 

Why  does  a  judge  swear  to  discharge  his  duties  agreeably  to 
the  constitution  of  the  United  States,  if  that  constitution  forms 
no  rule  for  his  government  ?  if  it  is  closed  upon  him,  and  cannot 
be  inspected  by  him  ? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn 
mockery.  To  prescribe,  or  to  take  this  oath,  becomes  equally  a 
crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  declaring 
what  shall  be  the  supreme  law  of  the  land,  the  constitution  itself 
is  first  mentioned;  and  not  the  laws  of  the  United  States  generally, 
but  those  only  which  shall  be  made  in  'pursuance  of  the  constitu- 
tion, have  that  rank. 

Thus,  the  particular  phraseology  of  the  constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  supposed 
to  be  essential  to  all  written  constitutions,  that  a  law  repugnant 
to  the  constitution  is  void;  and  that  courts,  as  well  as  other  de- 
partments, are  bound  by  that  instrument. 

The  rule  must  be  discharged. 


MARTIN,  Plaintiff  in  Error,  v.  MOTT, 
Defendant  in  Error. 

Supreme  Court  of  the  United  States.     1827. 

[12  Wheaton,  19.] 

Error  to  the  Court  for  the  Trial  of  Impeachments  and  Correc- 
tion of  Errors  of  the  State  of  New  York.  .  .  . 

The  Attorney  General  (Wirt)  and  Coxe,  for  plaintiff  in  error. 
D.  B.  Ogden,  contra. 

Story,  J.,  delivered  the  opinion  of  the  court.  —  This  is  a  writ 
of  error  to  the  judgment  of  the  Court  for  the  Trial  of  Impeach- 
ments and  the  Correction  of  Errors  of  the  State  of  New  York, 


34  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

being  the  highest  Court  of  that  State,  and  is  brought  here  in  virtue 
of  the  25th  section  of  the  Judiciary  Act  of  1789,  ch.  20.  The 
original  action  was  a  replevin  for  certain  goods  and  chattels,  to 
which  the  original  defendant  put  in  an  avowry,  and  to  that  avowry 
there  was  a  demurrer,  assigning  nineteen  distinct  and  special 
causes  of  demurrer.  Upon  a  joinder  in  demurrer,  the  Supreme 
Court  of  the  State  gave  judgment  against  the  avowant;  and  that 
judgment  was  affirmed  by  the  high  Court  to  which  the  present 
writ  of  error  is  addressed. 

The  avowry,  in  substance,  asserts  a  justification  of  the  taking 
of  the  goods  and  chattels  to  satisfy  a  fine  and  forfeiture  imposed 
upon  the  original  plaintiff  by  a  Court  Martial,  for  a  failure  to 
enter  the  service  of  the  United  States  as  a  mihtia-man,  when 
thereto  required  by  the  President  of  the  United  States,  in  pur- 
suance of  the  act  of  the  28th  of  February,  1795,  c.  101.  It  is 
argued  that  this  avowry  is  defective,  both  in  substance  and  form; 
and  it  will  be  our  business  to  discuss  the  most  material  of  these 
objections;  and  as  to  others,  of  which  no  particular  notice  is  taken, 
it  is  to  be  understood  that  the  Court  are  of  opinion,  that  they 
are  either  unfounded  in  fact  or  in  law,  and  do  not  require  any 
separate  examination. 

For  the  more  clear  and  exact  consideration  of  the  subject,  it 
may  be  necessary  to  refer  to  the  constitution  of  the  United  States, 
and  some  of  the  provisions  of  the  act  of  1795.  The  constitution 
declares  that  Congress  shall  have  power  "  to  provide  for  calling 
forth  the  militia,  to  execute  the  laws  of  the  Union,  suppress  in- 
surrections, and  repel  invasions":  and  also  "to  provide  for 
organizing,  arming,  and  disciplining  the  militia,  and  for  governing 
such  part  of  them  as  may  be  employed  in  the  service  of  the  United 
States.""  In  pursuance  of  this  authority,  the  act  of  1795  has 
provided,  "that  whenever  the  United  States  shall  be  invaded,  or 
be  in  imminent  danger  of  invasion  from  any  foreign  nation  or 
Indian  tribe,  it  shall  be  lawful  for  the  President  of  the  United 
States  to  call  forth  such  number  of  the  mihtia  of  the  State  or 
States  most  convenient  to  the  place  of  danger,  or  scene  of  action, 
as  he  may  judge  necessary  to  repel  such  invasion,  and  to  issue  his 
order  for  that  purpose  to  such  officer  or  officers  of  the  militia  as 
he  shall  think  proper."  And  like  provisions  are  made  for  the 
other  cases  stated  in  the  constitution.  It  has  not  been  denied 
here,  that  the  act  of  1795  is  within  the  constitutional  authority 
of  Congress,  or  that  Congress  may  not  lawfully  provide  for  cases 
of  imminent  danger  of  invasion,  as  well  as  for  cases  where  an 


MARTIN   V.    MOTT.  35 

invasion  has  actually  taken  place.  In  our  opinion  there  is  no 
ground  for  a  doubt  on  this  point,  even  if  it  had  been  relied  on,  for 
the  power  to  provide  for  repelling  invasions  includes  the  power 
to  provide  against  the  attempt  and  danger  of  invasion,  as  the 
necessary  and  proper  means  to  effectuate  the  object.  One  of  the 
best  means  to  repel  invasion  is  to  provide  the  requisite  force  for 
action  before  the  invader  himself  has  reached  the  soil. 

The  power  thus  confided  by  Congress  to  the  President,  is, 
doubtless,  of  a  very  high  and  delicate  nature.  A  free  people  are 
naturally  jealous  of  the  exercise  of  military  power;  and  the 
power  to  call  the  militia  into  actual  service  is  certainly  felt  to  be 
one  of  no  ordinary  magnitude.  But  it  is  not  a  power  which  can 
be  executed  without  a  correspondent  responsibility.  It  is,  in  its 
terms,  a  limited  power,  confined  to  cases  of  actual  invasion,  or  of 
imminent  danger  of  invasion.  If  it  be  a  limited  power,  the 
question  arises,  by  whom  is  the  exigency  to  be  judged  of  and 
decided  ?  Is  the  President  the  sole  and  exclusive  judge  whether 
the  exigency  has  arisen,  or  is  it  to  be  considered  as  an  open  ques- 
tion, upon  which  every  officer  to  whom  the  orders  of  the  President 
are  addressed,  may  decide  for  himself,  and  equally  open  to  be 
contested  by  every  militia-man  who  shall  refuse  to  obey  the  orders 
of  the  President  ?  We  are  all  of  opinion,  that  the  authority  to 
decide  whether  the  exigency  has  arisen  belongs  exclusively  to 
the  President,  and  that  his  decision  is  conclusive  upon  all  other 
persons.  We  think  that  this  construction  necessarily  results 
from  the  nature  of  the  power  itself,  and  from  the  manifest  object 
contemplated  by  the  act  of  Congress.  The  power  itself  is  to  be 
exercised  upon  sudden  emergencies,  upon  great  occasions  of  state, 
and  under  circumstances  which  may  be  vital  to  the  existence  of 
the  Union.  A  prompt  and  unhesitating  obedience  to  orders  is 
indispensable  to  the  complete  attainment  of  the  object.  The 
service  is  a  military  service,  and  the  command  of  a  mihtary  nature; 
and  in  such  cases,  every  delay,  and  every  obstacle  to  an  efficient 
and  immediate  compliance,  necessarily  tend  to  jeopard  the  public 
interests.  While  subordinate  officers  or  soldiers  are  pausing  to 
consider  whether  they  ought  to  obey,  or  are  scrupulously  weighing 
the  evidence  of  the  facts  upon  which  the  commander-in-chief 
exercises  the  right  to  demand  their  services,  the  hostile  enterprise 
may  be  accomplished  without  the  means  of  resistance.  If  '*  the 
power  of  regulating  the  mihtia,  and  of  commanding  its  services 
in  times  of  insurrection  and  invasion,  are  (as  it  has  been  emphati- 
cally said  they  are)  natural  incidents  to  the  duties  of  superintending 


36  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

the  common  defence,  and  of  watching  over  the  internal  peace  of 
the  confederacy,"  these  powers  must  be  so  construed  as  to  the 
modes  of  their  exercise  as  not  to  defeat  the  great  end  in  view.  If 
a  superior  officer  has  a  right  to  contest  the  orders  of  the  President 
upon  his  own  doubts  as  to  the  exigency  having  arisen,  it  must  be 
equally  the  right  of  every  inferior  officer  and  soldier;  and  any  act 
done  by  any  person  in  furtherance  of  such  orders  would  subject 
him  to  responsibility  in  a  civil  suit,  in  which  his  defence  must 
finally  rest  upon  his  ability  to  establish  the  facts  by  competent 
proofs.  Such  a  course  would  be  subversive  of  all  discipline,  and 
expose  the  best  disposed  officers  to  the  chances  of  ruinous  litigation. 
Besides,  in  many  instances,  the  evidence  upon  which  the  Presi- 
dent might  decide  that  there  is  imminent  danger  of  invasion, 
might  be  of  a  nature  not  constituting  strict  technical  proof,  or 
the  disclosure  of  the  evidence  might  reveal  important  secrets  of 
state,  which  the  public  interest,  and  even  safety,  might  imperiously 
demand  to  be  kept  in  concealment.  .  .  . 

He  is  necessarily  constituted  the  judge  of  the  existence  of  the 
exigency  in  the  first  instance,  and  is  bound  to  act  according  to  his 
belief  of  the  facts.  If  he  does  so  act,  and  decides  to  call  forth  the 
militia,  his  orders  for  this  purpose  are  in  strict  conformity  with 
the  provisions  of  the  law;  and  it  would  seem  to  follow  as  a  neces- 
sary consequence,  that  every  act  done  by  a  subordinate  officer, 
in  obedience  to  such  orders,  is  equally  justifiable.  The  law  con- 
templates that,  under  such  circumstances,  orders  shall  be  given 
to  carry  the  power  into  effect;  and  it  cannot  therefore  be  a  correct 
inference  that  any  other  person  has  a  just  right  to  disobey  them. 
The  law  does  not  provide  for  any  appeal  from  the  judgment  of 
the  President,  or  for  any  right  in  subordinate  officers  to  review 
his  decision,  and  in  effect  defeat  it.  Whenever  a  statute  gives  a 
discretionary  power  to  any  person,  to  be  exercised  by  him  upon 
his  own  opinion  of  certain  facts,  it  is  a  sound  rule  of  construction 
that  the  statute  constitutes  him  the  sole  and  exclusive  judge  of 
the  existence  of  those  facts.  And,  in  the  present  case,  we  are  all 
of  opinion  that  such  is  the  true  construction  of  the  act  of  1795. 
It  is  no  answer  that  such  a  power  may  be  abused,  for  there  is  no 
power  which  is  not  susceptible  of  abuse.  The  remedy  for  this, 
as  well  as  for  all  other  official  misconduct,  if  it  should  occur,  is  to 
be  found  in  the  constitution  itself.  In  a  free  government,  the 
danger  must  be  remote,  since  in  addition  to  the  high  qualities 
which  the  Executive  must  be  presumed  to  possess,  of  public  virtue, 
and  honest  devotion  to  the  public  interests,  the  frequency  of 


MARTIN   V.    MOTT.  37 

elections,  and  the  watchfulness  of  the  representatives  of  the  nation 
carry  with  them  all  the  checks  which  can  be  useful  to  guard  against 
usurpation  or  wanton  tyranny. 

This  doctrine  has  not  been  seriously  contested  upon  the  present 
occasion.  It  was  indeed  maintained  and  approved  by  the  Supreme 
Court  of  New  York,  in  the  case  of  Vanderheyden  v.  Young  (11 
Johns.  Rep.  150)  where  the  reasons  hi  support  of  it  were  most 
ably  expounded  by  Mr.  Justice  Spencer,  in  delivering  the  opinion 
of  the  court. 

But  it  is  now  contended,  as  it  was  contended  in  that  case,  that 
notwithstanding  the  judgment  of  the  President  is  conclusive  as 
to  the  existence  of  the  exigency,  and  may  be  given  in  evidence 
as  conclusive  proof  thereof,  yet  that  the  avowry  is  fatally  defective, 
because  it  omits  to  aver  that  the  fact  did  exist.  The  argument 
is  that  the  power  confided  to  the  President  is  a  limited  power, 
and  can  be  exercised  only  in  the  cases  pointed  out  in  the  statute, 
and  therefore  it  is  necessary  to  aver  the  facts  which  bring  the 
exercise  within  the  purview  of  the  statute.  In  short,  the  same 
principles  are  sought  to  be  applied  to  the  delegation  and  exercise 
of  this  power  intrusted  to  the  Executive  of  the  nation  for  great 
political  purposes,  as  might  be  applied  to  the  humblest  officer  in 
the  government,  acting  upon  the  most  narrow  and  special  author- 
ity. It  is  the  opinion  of  the  Court,  that  this  objection  cannot 
be  maintained.  When  the  President  exercises  an  authority 
confided  to  him  by  law,  the  presumption  is,  that  it  is  exercised  in 
pursuance  of  law.  Every  public  officer  is  presumed  to  act  in 
obedience  to  his  duty,  until  the  contrary  is  shown;  and,  a  fortiori, 
this  presumption  ought  to  be  favorably  applied  to  the  chief  magis- 
trate of  the  Union.  It  is  not  necessary  to  aver  that  the  act  which 
he  may  rightfully  do  was  so  done.  If  the  fact  of  the  existence 
of  the  exigency  were  averred,  it  would  be  traversable,  and  of 
course  might  be  passed  upon  by  a  jury;  and  thus  the  legality  of 
the  orders  of  the  President  would  depend,  not  on  his  own  judg- 
ment of  the  facts,  but  upon  the  finding  of  those  facts  upon  the 
proofs  submitted  to  a  jury.  .  .  . 

The  next  objection  is  that  it  does  not  sufficiently  appear  in 
the  avowry  that  the  Court  Martial  was  a  lawfully  constituted 
Court  Martial,  having  jurisdiction  of  the  offence  at  the  time  of 
passing  its  sentence  against  the  original  plaintiff. 

Various  grounds  have  been  assigned  in  support  of  this  objec- 
tion. In  the  first  place,  it  is  said  that  the  original  plaintiff  was 
never  employed  in  the  service  of  the  United  States,  but  refused 


38  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

to  enter  that  service,  and  that,  consequently,  he  was  not  Hable 
to  the  rules  and  articles  of  war,  or  to  be  tried  for  the  offence  by 
any  Court  Martial  organized  under  the  authority  of  the  United 
States.  The  case  of  Houston  v.  Moore  (5  Wheat.  Rep.  1)  affords 
a  conclusive  answer  to  this  suggestion.  It  was  decided  in  that 
case,  that  although  a  militia-man,  who  refused  to  obey  the  orders 
of  the  President  calling  him  into  the  public  service,  was  not,  in 
the  sense  of  the  act  of  1795,  "  employed  in  the  service  of  the 
United  States  "  so  as  to  be  subject  to  the  rules  and  articles  of  war; 
yet  that  he  was  liable  to  be  tried  for  the  offence  under  the  5th 
section  of  the  same  act,  by  a  Court  Martial  called  under  the 
authority  of  the  United  States.  .  .  . 

Another  objection  to  the  proceedings  of  the  Court  Martial  is 
that  they  took  place,  and  the  sentence  was  given,  three  years 
and  more  after  the  war  was  concluded,  and  in  a  time  of  profound 
peace.  But  the  opinion  of  this  Court  is  that  a  Court  Martial, 
regularly  called  under  the  act  of  1795,  does  not  expire  with  the 
end  of  a  war  then  existing,  nor  is  its  jurisdiction  to  try  these 
offences  in  any  shape  dependent  upon  the  fact  of  war  or  peace. 
The  act  of  1795  is  not  confined  in  its  operation  to  cases  of  refusal 
to  obey  the  orders  of  the  President  in  times  of  public  war.  On 
the  contrary,  that  act  authorizes  the  President  to  call  forth  the 
militia  to  suppress  insurrections,  and  to  enforce  the  laws  of  the 
United  States,  in  times  of  peace.  .  .  . 

It  is  the  opinion  of  the  Court  that  the  judgment  of  the  Court  for 
the  trial  of  Impeachments  and  the  Correction  of  Errors  ought  to 
be  reversed;  and  that  the  cause  be  remanded  to  the  same  Court, 
with  directions  to  cause  a  judgment  to  be  entered  upon  the 
pleadings  in  favor  of  the  avowant. 


FOSTER  V.   NEILSON. 

Supreme  Court  of  the  United  States.     1829. 
[2  Peters,  253.] 

Error  to  the  District  Court  of  the  Eastern  District  of  Louisi- 
ana. .  .  . 

The  case  was  argued  by  Coxe  and  Webster,  for  the  plaintiffs  in 
error;  and  by  Jones,  for  the  defendant. 


FOSTER   V.    NEILSON.  39 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  suit  was  brought  by  the  plaintiffs  in  error  in  the  court  of 
the  United  States,  for  the  Eastern  District  of  Louisiana,  to  recover 
a  tract  of  land  lying  in  that  district,  about  thirty  miles  east  of  the 
Mississippi,  and  in  the  possession  of  the  defendant.  The  plaintiffs 
claimed  under  a  grant  for  40,000  arpents  of  land,  made  by  the 
Spanish  governor,  on  the  2d  of  January  1804,  to  Jayme  Joydra, 
and  ratified  by  the  king  of  Spain  on  the  29th  of  May,  1804.  The 
petition  and  order  of  survey  are  dated  in  September,  1803,  and 
the  return  of  the  survey  itself  was  made  on  the  27th  of  October 
in  the  same  year.  The  defendant  excepted  to  the  petition  of  the 
plaintiffs,  alleging  that  it  does  not  show  a  title  on  which  they 
can  recover;  that  the  territory,  within  which  the  land  claimed 
is  situated,  had  been  ceded,  before  the  grant,  to  France,  and  by 
France  to  the  United  States;  and  that  the  grant  is  void,  being 
made  by  persons  who  had  no  authority  to  make  it.  The  court 
sustained  the  exception,  and  dismissed  the  petition.  The  cause 
is  brought  before  this  court  by  a  writ  of  error. 

The  case  presents  this  very  intricate,  and  at  one  time  very 
interesting  question:  To  whom  did  the  country  between  the 
Iberville  and  the  Perdido  rightfully  belong,  when  the  title  now 
asserted  by  the  plaintiffs  was  acquired  ? 

This  question  has  been  repeatedly  discussed  with  great  talent 
and  research,  by  the  government  of  the  United  States  and  that 
of  Spain.  The  United  States  have  perseveringly  and  earnestly 
insisted,  that  by  the  treaty  of  St.  Ildefonso,  made  on  the  1st  of 
October  in  the  year  1800,  Spain  ceded  the  disputed  territory  as 
part  of  Louisiana  to  France;  and  that  France,  by  the  treaty  of 
Paris,  signed  on  the  30th  of  April,  1803,  and  ratified  on  the  21st 
of  October  in  the  same  year,  ceded  it  to  the  United  States.  Spain 
has  with  equal  perseverance  and  earnestness  maintained,  that 
her  cession  to  France  comprehended  that  territory  only  which 
was  at  that  time  denominated  Louisiana,  consisting  of  the  island 
of  New  Orleans,  and  the  country  she  received  from  France  west 
of  the  Mississippi.  .  .  . 

In  a  controversy  between  two  nations  concerning  national 
boundary,  it  is  scarcely  possible  that  the  courts  of  either  should 
refuse  to  abide  by  the  measures  adopted  by  its  own  government. 
There  being  no  common  tribunal  to  decide  between  them,  each 
determines  for  itself  on  its  own  rights,  and  if  they  cannot  adjust 
their  differences  peaceably,  the  right  remains  with  the  strongest. 
The  judiciary  is  not  that  department  of  the  government,  to  which 


40  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

the  assertion  of  its  interests  against  foreign  powers  is  confided; 
and  its  duty  commonly  is  to  decide  upon  individual  rights,  accord- 
ing to  those  principles  which  the  political  departments  of  the 
nation  have  established.  If  the  course  of  the  nation  has  been 
a  plain  one,  its  courts  would  hesitate  to  pronounce  it  erroneous. 

We  think,  then,  however  individual  judges  might  construe  the 
treaty  of  St.  Ildefonso,  it  is  the  province  of  the  court  to  conform 
its  decisions  to  the  will  of  the  legislature,  if  that  will  has  been 
clearly  expressed. 

The  convulsed  state  of  European  Spain  affected  her  influence 
over  her  colonies;  and  a  degree  of  disorder  prevailed  in  the  Floridas 
at  which  the  United  States  could  not  look  with  indifference.  In 
October,  1810,  the  President  issued  his  proclamation,  directing 
the  governor  of  the  Orleans  territory  to  take  possession  of  the 
country  as  far  east  as  the  Perdido,  and  to  hold  it  for  the  United 
States.  This  measure  was  avowedly  intended  as  an  assertion  of 
the  title  of  the  United  States;  but  as  an  assertion  which  was 
rendered  necessary  in  order  to  avoid  evils  which  might  contravene 
the  wishes  of  both  parties,  and  which  would  still  leave  the  terri- 
tory "  a  subject  of  fair  and  friendly  negotiation  and  adjustment." 

In  April,  1812,  Congress  passed  "  an  act  to  enlarge  the  limits 
of  the  State  of  Louisiana."  This  act  describes  lines  which  com- 
prehend the  land  in  controversy,  and  declares  that  the  country 
included  within  them  shall  become  and  form  a  part  of  the  State  of 
Louisiana. 

In  May  of  the  same  year,  another  act  was  passed,  annexing 
the  residue*  of  the  country  west  of  the  Perdido  to  the  Mississippi 
territory. 

And  in  February,  1813,  the  President  was  authorized  "  to 
occupy 'and  hold  all  that  tract  of  country  called  West  Florida, 
which  lies  west  of  the  river  Perdido,  not  now  in  possession  of  the 
United  States." 

On  the  third  of  March,  1817,  Congress  erected  that  part  of 
Florida,  which  had  been  annexed  to  the  Mississippi  territory, 
into  a  separate  territory,  called  Alabama. 

The  powers  of  the  government  were  extended  to,  and  exercised 
in  those  parts  of  West  Florida  which  composed  a  part  of  Louisiana 
and  Mississippi,  respectively;  and  a  separate  government  was 
erected  in  Alabama.     U.  S.  L.  c.  4.  409. 

In  March  1819,  "  Congress  passed  an  act  to  enable  the  people 
of  Alabama  to  form  a  constitution  and  State  government."  And 
in  December  1819,  she  was  admitted  into  the  union,  and  declared 


FOSTER   V.    NEILSON.  41 

one  of  the  United  States  of  America.  The  treaty  of  amity,  settle- 
ment and  limits,  between  the  United  States  and  Spain,  was  signed 
at  Washington  on  the  22d  day  of  February,  1819,  but  was  not 
ratified  by  Spain  till  the  24th  day  of  October,  1820;  nor  by  the 
United  States,  until  the  22d  day  of  February  1821.  So  that 
Alabama  was  admitted  into  the  union  as  an  independent  State, 
in  virtue  of  the  title  acquired  by  the  United  States  to  her  territory 
under  the  treaty  of  April,  1803. 

After  these  acts  of  sovereign  power  over  the  territory  in  dispute, 
asserting  the  American  construction  of  the  treaty  by  which  the 
government  claims  it,  to  maintain  the  opposite  construction  in 
its  own  courts  would  certainly  be  an  anomaly  in  the  history  and 
practice  of  nations.  If  those  departments  which  are  intrusted 
with  the  foreign  intercourse  of  the  nation,  which  assert  and  main- 
tain its  interests  against  foreign  powers,  have  unequivocally 
asserted  its  rights  of  dominion  over  a  country  of  which  it  is  in 
possession,  and  which  it  claims  under  a  treaty;  if  the  legislature 
has  acted  on  the  construction  thus  asserted,  it  is  not  in  its  own 
courts  that  this  construction  is  to  be  denied.  A  question  like 
this,  respecting  the  boundaries  of  nations,  is,  as  has  been  truly 
said,  more  a  political  than  a  legal  question;  and  in  its  discussion, 
the  courts  of  every  country  must  respect  the  pronounced  will  of 
the  legislature.  .  .  . 

We  are  of  opinion,  then,  that  the  court  committed  no  error  in 
dismissing  the  petition  of  the  plaintiff,  and  that  the  judgment 
ought  to  be  affirmed  with  costs.  .  .  .  ^ 

1  In  Williams  v.  Suffolk  Ins.  Co.,  13  Pet.  415  (1839),  the  Circuit  Court  for 
the  District  of  Massachusetts  having  certified  a  difference  of  opinion  on  the 
question  "  whether,  inasmuch  as  the  American  government  has  insisted,  and 
does  still  insist,  through  its  regular  executive  authority,  that  the  Falkland 
islands  do  not  constitute  any  part  of  the  dominions  within  the  sovereignty 
of  the  government  of  Buenos  Ayres,  and  that  the  seal  fishery  at  those  islands 
is  a  trade  free  and  lawful  to  the  citizens  of  the  United  States  ...  ;  it  is  com- 
petent for  the  Circuit  Court,  in  this  cause,  to  inquire  into  and  ascertain  by 
other  evidence  the  title  of  said  government  of  Buenos  Ayres  to  the  sovereignty 
of  the  said  Falkland  islands;  and  if  such  evidence  satisfies  the  court,  to  decide 
against  the  doctrines  and  claims  set  up  and  supported  by  the  American  govern- 
ment on  this  subject." 

The  Supreme  Court  decided  that  it  was  impossible  to  go  behind  the  position 
taken  by  the  executive  authority;  and  McLean,  J.,  for  the  court  said:  — 

"  And  can  there  be  any  doubt,  that  when  the  executive  branch  of  the  govern- 
ment, which  is  charged  with  our  foreign  relations,  shall,  in  its  correspondence 
with  a  foreign  nation,  assume  a  pact  in  regard  to  the  sovereignty  of  any  island 
or  country,  it  is  conclusive  on  the  judicial  department  ?  And  in  this  view, 
it  is  not  material  to  inquire,  nor  is  it  the  province  of  the  court  to  determine, 


42  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

KENDALL,  Postmaster  General  of  the  United  States, 

Plaintiff  in  Error,  v.  UNITED  STATES,  on  the 

relation  of  Stokes  et  al. 

Supreme  Court  of  the  United  States.     1838. 
[12  Peters,  524.] 

Error  to  the  Circuit  Court  of  the  District  of  Columbia,  for  the 
County  of  Washington.  .  .  . 

Key  and  Butler,  A.  G.,  for  the  plaintiff  in  error.  Coxe  and 
Johnson,  contra. 

Thompson,  J.,  delivered  the  opinion  of  the  Court.  .  .  .  This 
case  was  brought  before  the  court  below,  by  petition,"  setting  out 
certain  contract^  made  between  the  relators  and  the  late  post- 
master general,  upon  which  they  claimed  certain  credits  and 
allowances  upon  their  contracts  for  the  transportation  of  the  mail. 
That  credits  and  allowances  were  duly  made  by  the  late  postmaster 
general.  That  the  present  postmaster  general  when  he  came  into 
office  re-examined  the  contracts  entered  into  with  his  predecessor, 
and  the  allowances  made  by  him,  and  the  credits  and  payments 
which  had  been  made;  and  directed  that  the  allowances  and 
credits  should  be  withdrawn,  and  the  relators  recharged  with 
divers  payments  they  had  received.  That  the  relators  presented 
a  memorial  to  congress  on  the  subject,  upon  which  a  law  was 
passed  on  the  21st  of  July,  1836,  for  their  relief;  by  which  the 
solicitor  of  the  treasury  was  authorized  and  directed  to  settle  and 
adjust  the  claims  of  the  relators  for  extra  services  performed  by 

whether  the  Executive  be  right  or  wrong.  It  is  enough  to  know,  that  in  the 
exercise  of  his  constitutional  functions,  he  has  decided  the  question.  Having 
done  this,  under  the  responsibihtiea  which  belong  to  him,  it  is  obligatory  on 
the  people  and  government  of  the  Union. 

"  If  this  were  not  the  rule,  cases  might  often  arise,  in  which,  on  the  most 
important  questions  of  foreign  jurisdiction,  there  would  be  an  irreconcilable 
difference  between  the  executive  and  judicial  departments.  By  one  of  these 
departments,  a  foreign  island  or  country  might  be  considered  as  at  peace  with 
the  United  States;  whilst  the  other  would  consider  it  in  a  state  of  war.  No 
well-regulated  government  has  ever  sanctioned  a  principle  so  unwise,  and  so 
destructive  of  national  character.  ...  As  the  Executive,  in  his  message,  and 
in  his  correspondence  with  the  government  of  Buenos  Ayres,  has  denied  the 
jiirisdiction  which  it  has  assumed  to  establish  on  the  Falkland  islands;  the  fact 
must  be  taken  and  voted  on  by  this  court  as  thus  asserted  and  maintained." 

See  also  Phillips  v.  Payne,  92  U.  S.  130  (1875)  (Alexandria  County,  Vir- 
ginia); Jones  V.  United  States,  137  U.  S.  202  (1890)  (Guano  Islands);  Pearcy 
V.  Stranahan,  205  U.  S.  257  (1907)  (Isle  of  Pines).  —  Ed. 


KENDALL   V.    UNITED    STATES.  43 

them;  to  inquire  into  and  determine  the  equity  of  such  claims; 
and  to  make  the  relators  such  allowance  therefor,  as  upon  full 
examination  of  all  the  evidence  may  seem  right,  according  to  the 
principles  of  equity.  And  that  the  postmaster  general  be,  and 
he  is  hereby  directed  to  credit  the  relators  with  whatever  sum  or 
sums  of  money,  if  any,  the  solicitor  shall  so  decide  to  be  due  to 
them,  for  and  on  account  of  any  such  service  or  contract.  .  .  . 
And  the  petition  prayed  the  court  to  award  a  mandamus  directed 
to  the  postmaster  general,  commanding  him  fully  to  comply  with, 
obey  and  execute  the  said  act  of  congress,  by  crediting  the  relators 
with  the  full  and  entire  sum  awarded  in  their  favor  by  the  solic- 
itor of  the  treasury. 

Such  proceedings  were  afterwards  had  in  the  case,  that  a  peremp- 
tory mandamus  was  ordered  commanding  the  said  Amos  Kendall, 
postmaster  general,  forthwith  to  credit  the  relators  with  the  full 
amount  awarded  and  decided  by  the  solicitor  of  the  treasury  to  be 
due  to  the  relators. 

The  questions  arising  upon  this  case  may  be  considered  under 
two  general  inquiries:  — 

1.  Does  the  record  present  a  proper  case  for  a  mandamus;  and 
if  so,  then, 

2.  Had  the  circuit  court  of  this  district  jurisdiction  of  the  case, 
and  authority  to  issue  the  writ  ? 

Under  the'  first  head  of  inquiry,  it  has  been  considered  by  the 
counsel  on  the  part  of  the  postmaster  general,  that  this  is  a  pro- 
ceeding against  him  to  enforce  the  performance  of  an  official  duty. 
And  the  proceeding  has  been  treated  as  an  infringement  upon 
the  executive  department  of  the  government;  which  has  led  to  a 
very  extended  range  of  argument  on  the  independence  and  duties 
of  that  department;  but  which,  according  to  the  view  taken  by 
the  court  of  the  case,  is  entirely  misapplied.  We  do  not  think 
the  proceeding  in  this  case,  interferes,  in  any  respect  whatever, 
with  the  rights  or  duties  of  the  executive;  or  that  it  involves  any 
conflict  of  powers  between  the  executive  and  judicial  departments 
of  the  government.  The  mandamus  does  not  seek  to  direct  or 
control  the  postmaster  general  in  the  discharge  of  any  official 
duty,  partaking  in  any  respect  of  an  executive  character;  but  to 
enforce  the  performance  of  a  mere  ministerial  act,  which  neither 
he  nor  the  President  had  any  authority  to  deny  or  control. 

We  shall  not,  therefore,  enter  into  any  particular  examination 
of  the  line  to  be  drawn  between  the  powers  of  the  executive  and 
judicial   departments  of   the  government.     The   theory  of   the 


44  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

canstitution  undoubtedly  is,  that  the  great  powers  of  the  govern- 
ment are  divid  d  into  separate  departments;  and  so  far  as  these 
powers  are  derived  from  the  constitution,  the  departments  may- 
be regarded  as  independent  of  each  other.  But  beyond  that,  all 
are  subject  to  regulations  by  law,  touching  the  discharge  of  the 
duties  required  to  be  performed. 

The  executive  power  is  vested  in  a  President;  and  as  far  as  his 
powers  are  derived  from  the  constitution,  he  is  beyond  the  reach 
of  any  other  department,  except  in  the  mode  prescribed  by  the 
constitution  through  the  impeaching  power.  But  it  by  no  means 
follows,  that  every  officer  in  every  branch  of  that  department  is 
under  the  exclusive  direction  of  the  President.  Such  a  principle, 
we  apprehend,  is  not,  and  certainly  cannot  be  claimed  by  the 
President. 

There  are  certain  political  duties  imposed  upon  many  officers  in 
the  executive  department,  the  discharge  of  which  is  under  the 
direction  of  the  President.  But  it  would  be  an  alarming  doctrine, 
that  congress  cannot  impose  upon  any  executive  officer  any  duty 
they  may  think  proper,  which  is  not  repugnant  to  any  rights 
secured  and  protected  by  the  constitution;  and  in  such  cases, 
the  duty  and  responsibility  grow  out  of  and  are  subject  to  the 
control  of  the  law,  and  not  to  the  direction  of  the  President. 
And  this  is  emphatically  the  case,  where  the  duty  enjoined  is  of 
a  mere  ministerial  character. 

Let  us  proceed,  then,  to  an  examination  of  the  act  required  by 
the  mandamus  to  be  performed  by  the  postmaster  general;  and 
his  obligation  to  perform,  or  his  right  to  resist  the  performance, 
must  depend  upon  the  act  of  congress  of  the  2d  of  July,  1836.  .  .  . 

Under  this  law  the  postmaster  general  is  vested  with  no  discre- 
tion or' control  over  the  decisions  of  the  solicitor;  nor  is  any  appeal 
or  review  of  that  decision  provided  for  by  the  act.  The  terms  of 
the  submission  was  a  matter  resting  entirely  in  the  discretion  of 
congress;  and  if  they  thought  proper  to  vest  such  a  power  in  any 
one,  and  especially  as  the  arbitrator  was  an  officer  of  the  govern- 
ment, it  did  not  rest  with  the  postmaster  general  to  control  Con- 
gress or  the  solicitor,  in  that  affair.  .  .  . 

It  was  urged  at  the  bar,  that  the  postmaster  general  was  alone 
subject  to  the  control  and  direction  of  the  President,  with  respect 
to  the  execution  of  the  duty  imposed  upon  him  by  this  law;  and 
this  right  of  the  President  is  claimed,  as  growing  out  of  the  obliga- 
tion imposed  upon  him  by  the  constitution,  to  take  care  that  the 
laws  be  faithfully  executed.     This  is  a  doctrine  that  cannot 


KENDALL   V.    UNITED    STATES.  45 

receive  the  sanction  of  this  court.  It  would  be  vesting  in  the 
President  a  dispensing  power,  which  has  no  countenance  for  its 
support  in  any  part  of  the  constitution;  and  is  asserting  a  prin- 
ciple, which,  if  carried  out  in  its  results,  to  all  cases  falling  within 
it,  would  be  clothing  the  President  with  a  power  entirely  to  con- 
trol the  legislation  of  Congress,  and  paralyze  the  administration 
of  justice. 

To  contend  that  the  obligation  imposed  on  the  President  to  see 
the  laws  faithfully  executed  implies  a  power  to  forbid  their  execu- 
tion, is  a  novel  construction  of  the  constitution,  and  entirely  in- 
admissible. But  although  the  argument  necessarily  leads  to 
such  a  result,  we  do  not  perceive  from  the  case  that  any  such  power 
has  been  claimed  by  the  President.  But,  on  the  contrary,  it  is 
fairly  to  be  inferred  that  such  power  was  disclaimed.  He  did 
not  forbid  or  advise  the  postmaster  general  to  abstain  from  execut- 
ing the  law,  and  giving  the  credit  thereby  required;  but  submitted 
the  matter,  in  a  message  to  congress.  .  .  . 

The  right  of  the  relators  to  the  benefit  of  the  award  ought  now 
to  be  considered  as  irreversibly  established;  and  the  question  is 
whether  they  have  any,  and  what  remedy  ? 

The  act  required  by  the  law  to  be  done  by  the  postmaster  general 
is  simply  to  credit  the  relators  with  the  full  amount  of  the  award 
of  the  solicitor.  This  is  a  precise,  definite  act,  purely  ministerial; 
and  about  which  the  postmaster  general  had  no  discretion  what- 
ever. The  law  upon  its  face  shows  the  existence  of  accounts 
between  the  relators  and  the  post  office  department.  No  money 
was  required  to  be  paid;  and  none  could  have  been  drawn  out 
of  the  treasury  without  further  legislative  provision,  if  this  credit 
should  overbalance  the  debit  standing  against  the  relators.  But 
this  was  a  matter  with  which  the  postmaster  general  had  no 
concern.  He  was  not  called  upon  to  furnish  the  means  of  paying 
such  balance,  if  any  should  be  found.  He  was  simply  required 
to  give  the  credit.  This  was  not  an  official  act  in  any  other  sense 
than  being  a  transaction  in  the  department  where  the  books  and 
accounts  were  kept;  and  was  an  official  act  in  the  same  sense 
that  an  entry  in  the  minutes  of  a  court,  pursuant  to  an  order  of 
the  court,  is  an  official  act.  There  is  no  room  for  the  exercise  of 
any  discretion,  official  or  otherwise:  all  that  is  shut  out  by  the 
direct  and  positive  command  of  the  law,  and  the  act  required 
to  be  done  is,  in  every  just  sense,  a  mere  ministerial  act. 

And  in  this  view  of  the  case,  the  question  arises,  is  the  remedy 
by  mandamus  the  fit  and  appropriate  remedy  ?  .  .  . 


46  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

The  next  inquiry  is,  whether  the  court  below  had  jurisdiction 
of  the  case  and  power  to  issue  the  mandamus.^  .  .  . 

The  judgment  of  the  court  below  is  accordingly  affirmed,  with 
costs,  and  the  cause  remanded  for  further  proceedings.^ 

Taney,  C.  J.,  dissenting.'  .  .  . 

Barbour,  J.,  dissenting.  .  .  . 

Catron,  J.,  dissenting.  .  .  . 


LUTHER,   Plaintiff  in  Error,  v.  BORDEN  et  al,  Defendants 

in  Error.* 

Supreme  Court  of  the  United  States.     1849. 

[7  Howard,  1.]^ 

Error  to  the  Circuit  Court  for  the  District  of  Rhode  Island. 

Hallett  and  Clifford,  for  the  plaintiff.  Webster  and  Whipple, 
contra. 

Taney,  C.  J.,  delivered  the  opinion  of  the  court. 

This  case  has  arisen  out  of  the  unfortunate  political  differences 
which  agitated  the  people  of  Rhode  Island  in  1841  and  1842. 

It  is  an  action  of  trespass  brought  by  Martin  Luther,  the  plain- 
tiff in  error,  against  Luther  M.  Borden  and  others,  the  defendants, 
in  the  Circuit  Court  of  the  United  States  for  the  District  of  Rhode 
Island,  for  breaking  and  entering  the  plaintiff's  house.     The  de- 

^  It  was  here  explained  that  the  power  to  issue  a  mandamus  against  an 
oflBcer  of  the  United  States  had  not  been  given  to  the  Circuit  Courts  of  the 
United  States  in  the  several  States  —  citing  Mclntire  v.  Wood,  7  Cranch, 
504  (1813),  —  and  does  not  belong  to  State  courts  —  citing  McClung  v.  Silli- 
man,  6  Wheat.  598  (1821).  On  the  former  point,  see  Knapp  v.  L.  S.  &  M. 
S.  Ry.  Co.,  197  U.  S.  536  (1905).  —  Ed. 

2  Ace,  as  to  the  Supreme  Court  of  the  District  of  Columbia,  United  States 
V.  Schurz,  102  U.  S.  378  (1880). 

Compare  Decatur  v.  Paulding,  14  Pet.  497  (1840)  (exercise  of  discretion). 

See  Roberts  v.  United  States,  176  U.  S.  221  (1900)  (ministerial  act).  —  Ed. 

'  The  dissents  were  merely  on  the  ground  that  the  power  in  question  had 
not  been  given  to  this  court.  —  Ed. 

*  Catron,  Daniel,  and  McKinley,  JJ.,  did  not  hear  the  argument,  nor 
participate  in  the  decision.  —  Ed. 

*  The  reporter's  statement  has  been  omitted.  —  Ed. 


LUTHER   V.    BORDEN.  47 

fendants  justify  upon  the  ground  that  large  numbers  of  men  were 
assembled  in  different  parts  of  the  State  for  the  purpose  of  over- 
throwing the  government  by  military  force,  and  wore  actually 
levying  war  upon  the  State;  that,  in  order  to  defend  itself  from 
this  insurrection,  the  State  was  declared  by  competent  authority 
to  be  under  martial  law;  that  the  plaintiff  was  engaged  in  the 
insurrection;  and  that  the  defendants,  being  in  the  military  service 
of  the  State,  by  command  of  their  superior  officer,  broke  and 
entered  the  house  and  searched  the  rooms  for  the  plaintiff,  who 
was  supposed  to  be  there  concealed,  in  order  to  arrest  him,  doing 
as  little  damage  as  possible.  The  plaintiff  replied,  that  the 
trespass  was  committed  by  the  defendants  of  their  own  proper 
wrong,  and  without  any  such  cause;  and  upon  the  issue  joined 
on  this  replication,  the  parties  proceeded  to  trial.  .  .  . 

The  existence  and  authority  of  the  government  under  which 
the  defendants  acted  was  called  in  question;  and  the  plaintiff 
insists,  that,  before  the  acts  complained  of  were  committed, 
that  government  had  been  displaced  and  annulled  by  the  people 
of  Rhode  Island,  and  that  the  plaintiff  was  engaged  in  supporting 
the  lawful  authority  of  the  State,  and  the  defendants  themselves 
were  in  arms  against  it.  .  .  . 

The  evidence  shows  that  the  defendants,  in  breaking  into  the 
plaintiff's  house  and  endeavoring  to  arrest  him,  as  stated  in  the 
pleadings,  acted  under  the  authority  of  the  government  which 
was  established  in  Rhode  Island  at  the  time  of  the  Declaration 
of  Independence,  and  which  is  usually  called  the  charter  gov- 
ernment. For  when  the  separation  from  England  took  place, 
Rhode  Island  did  not,  like  the  other  States,  adopt  a  new  con- 
stitution, but  continued  the  form  of  government  established  by 
the  charter  of  Charles  the  Second,  in  1663;  making  only  such 
alterations,  by  acts  of  the  legislature,  as  were  necessary  to  adapt 
it  to  their  condition  and  rights  as  an  independent  State.  .  .  . 

In  this  form  of  government  no  mode  of  proceeding  was  pointed 
out  by  which  amendments  might  be  made.  It  authorized  the 
legislature  to  prescribe  the  qualification  of  voters,  and  in  the 
exercise  of  this  power  the  right  of  suffrage  was  confined  to  free- 
holders, until  the  adoption  of  the  constitution  of  1843. 

For  some  years  previous  to  the  disturbances  of  which  we  are 
now  speaking,  many  of  the  citizens  became  dissatisfied  with  the 
charter  government,  and  particularly  with  the  restriction  upon 
the  right  of  suffrage.  .  .  .  And  thereupon  meetings  were  held 
and  associations  formed  by  those  who  were  in  favor  of  a  more 


48  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

extended  right  of  suffrage,  which  finally  resulted  in  the  election 
of  a  convention  to  form  a  new  constitution  to  be  submitted  to 
the  people  for  their  adoption  or  rejection.  This  convention  was 
not  authorized  by  any  law  of  the  existing  government.  It  was 
elected  at  voluntary  meetings,  and  by  those  citizens  only  who 
favored  this  plan  of  reform;  those  who  were  opposed  to  it,  or 
opposed  to  the  manner  in  which  it  was  proposed  to  be  accom- 
plished, taking  no  part  in  the  proceedings.  The  persons  chosen 
as  above  mentioned  came  together  and  framed  a  constitution. 
.  .  .  The  convention  also  prescribed  the  manner  in  which  this 
constitution  should  be  submitted  to  the  decision  of  the  people, 
—  permitting  every  one  to  vote  on  that  question  who  was  an 
American  citizen,  twenty-one  years  old,  and  who  had  a  permanent 
residence  or  home  in  the  State,  and  directing  the  votes  to  be 
returned  to  the  convention. 

Upon  the  return  of  the  votes,  the  convention  declared  that  the 
constitution  was  adopted  and  ratified  by  a  majority  of  the  people 
of  the  State,  and  was  the  paramount  law  and  constitution  of 
Rhode  Island.  And  it  communicated  this  decision  to  the  governor 
under  the  charter  government,  for  the  purpose  of  being  laid  before 
the  legislature;  and  directed  elections  to  be  held  for  a  governor, 
members  of  the  legislature,  and  other  officers  under  the  new  con- 
stitution. These  elections  accordingly  took  place,  and  the  gov- 
ernor, lieutenant-governor,  secretary  of  state,  and  senators  and 
representatives  thus  appointed  assembled  at  the  city  of  Provi- 
dence on  May  3d,  1842,  and  immediately  proceeded  to  organize 
the  new  government,  by  appointing  the  officers  and  passing  the 
laws  necessary  for  that  purpose. 

The  charter  government  did  not,  however,  admit  the  validity 
of  these  proceedings,  nor  acquiesce  in  them.  On  the  contrary, 
in  January,  1842,  when  this  new  constitution  was  communicated 
to  the  governor,  and  by  him  laid  before  the  legislature,  it  passed 
resolutions  declaring  all  acts  done  for  the  purpose  of  imposing 
that  constitution  upon  the  State  to  be  an  assumption  of  the  powers 
of  government,  in  violation  of  the  rights  of  the  existing  govern- 
ment and  of  the  people  at  large;  and  that  it  would  maintain  its 
authority  and  defend  the  legal  and  constitutional  rights  of  the 
people. 

In  adopting  this  measure,  as  well  as  in  all  others  taken  by  the 
charter  government  to  assert  its  authority,  it  was  supported  by 
a  large  number  of  the  citizens  of  the  State,  claiming  to  be  a  major- 
ity, who  regarded  the  proceedings  of  the  adverse  party  as  unlawful 


LUTHER   V.    BORDEN.  49 

and  disorganizing,  and  maintained  that,  as  the  existing  government 
had  been  established  by  the  people  of  the  State,  no  convention  to 
frame  a  new  constitution  could  be  called  without  its  sanction;  and 
that  the  times  and  places  of  taking  the  votes,  and  the  officers  to 
receive  them,  and  the  qualification  of  the  voters,  must  be  previously 
regulated  and  appointed  by  law. 

But,  notwithstanding  the  determination  of  the  charter  govern- 
ment, and  of  those  who  adhered  to  it,  to  maintain  its  authority, 
Thomas  W.  Dorr,  who  had  been  elected  governor  under  the  new 
constitution,  prepared  to  assert  the  authority  of  that  government 
by  force,  and  many  citizens  assembled  in  arms  to  support  him. 
The  charter  government  thereupon  passed  an  act  declaring  the 
State  mider  martial  law,  and  at  the  same  time  proceeded  to  call 
out  the  militia,  to  repel  the  threatened  attack  and  to  subdue  those 
who  were  engaged  in  it.  In  this  state  of  the  contest,  the  house 
of  the  plaintiff,  who  was  engaged  in  supporting  the  authority  of 
the  new  government,  was  broken  and  entered  in  order  to  arrest 
him.  The  defendants  were,  at  the  time,  in  the  military  service 
of  the  old  government,  and  in  arms  to  support  its  authority.  .  .  . 

The  plaintiff  contends  that  the  charter  government  was  dis- 
placed, and  ceased  to  have  any  lawful  power,  after  the  organiza- 
tion, in  May,  1842,  of  the  government  which  he  supported,  and 
although  that  government  never  was  able  to  exercise  any  authority 
in  the  State,  nor  to  command  obedience  to  its  laws  or  to  its  officers, 
yet  he  insists  that  it  was  the  lawful  and  established  government, 
upon  the  ground  that  it  was  ratified  by  a  large  majority  of  the 
male  people  of  the  State  of  the  age  of  twenty-one  and  upwards, 
and  also  by  a  majority  of  those  who  were  entitled  to  vote  for 
general  officers  under  the  then  existing  laws  of  the  State.  The 
fact  that  it  was  so  ratified  was  not  admitted;  and  at  the  trial  in 
the  Circuit  Court  he  offered  to  prove  it  by  the  production  of  the 
original  ballots,  and  the  original  registers  of  the  persons  voting, 
verified  by  the  oaths  of  the  several  moderators  and  clerks  of  the 
meetings,  and  by  the  testimony  of  all  the  persons  so  voting,  and 
by  the  said  constitution;  and  also  offered  in  evidence,  for  the  same 
purpose,  that  part  of  the  census  of  the  United  States  for  the 
year  1840  which  applies  to  Rhode  Island;  and  a  certificate  of  the 
secretary  of  state  of  the  charter  government,  showing  the  number 
of  votes  polled  by  the  freemen  of  the  State  for  the  ten  years  then 
last  past. 

The  Circuit  Court  rejected  this  evidence,  and  instructed  the 
jury  that  the  charter  government  and  laws  under  which  the 


50  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

defendants  acted  were,  at  the  time  the  trespass  is  alleged  to 
have  been  committed,  in  full  force  and  effect  as  the  form  of 
government  and  paramount  law  of  the  State,  and  constituted 
a  justification  of  the  acts  of  the  defendants  as  set  forth  in  their 
pleas. 

It  is  this  opinion  of  the  Circuit  Court  that  we  are  now  called 
upon  to  review.  .  .  . 

Certainly,  the  question  which  the  plaintiff  proposed  to  raise 
by  the  testimony  he  offered  has  not  heretofore  been  recognized 
as  a  judicial  one  in  any  of  the  State  courts.  In  forming  the  con- 
stitutions of  the  different  States,  after  the  Declaration  of  Inde- 
pendence, and  in  the  various  changes  and  alterations  which  have 
since  been  made,  the  political  department  has  always  determined 
whether  the  proposed  constitution  or  amendment  was  ratified 
or  not  by  the  people  of  the  State,  and  the  judicial  power  has  fol- 
lowed its  decision.  In  Rhode  Island,  the  question  has  been 
directly  decided.  Prosecutions  were  there  instituted  against 
some  of  the  persons  who  had  been  active  in  the  forcible  opposition 
to  the  old  government.  .  .  . 

But  the  courts  uniformly  held  that  the  inquiry  proposed  to 
be  made  belonged  to  the  political  power  and  not  to  the  judicial; 
that  it  rested  with  the  political  power  to  decide  whether  the  charter 
government  had  been  displaced  or  not;  and  when  that  decision 
was  made,  the  judicial  department  would  be  bound  to  take  notice 
of  it  as  the  paramount  law  of  the  State,  without  the  aid  of  oral 
evidence  or  the  examination  of  witnesses;  that,  according  to  the 
laws  and  institutions  of  Rhode  Island,  no  such  change  had  been 
recognized  by  the  political  power;  and  that  the  charter  govern- 
ment was  the  lawful  and  established  government  of  the  State 
during  the  period  in  contest,  and  that  those  who  were  in  arms 
against  it  were  insurgents,  and  liable  to  punishment.  .  .  . 

The  point,  then,  raised  here  has  been  already  decided  by  the 
courts  of  Rhode  Island.  The  question  relates,  altogether,  to 
the  constitution  and  laws  of  that  State;  and  the  well  settled  rule 
in  this  court  is,  that  the  courts  of  the  United  States  adopt  and 
follow  the  decisions  of  the  State  courts  in  questions  which  concern 
merely  the  constitution  and  laws  of  the  State.  .  .  . 

Moreover,  the  Constitution  of  the  United  States,  as  far  as  it 
has  provided  for  an  emergency  of  this  kind,  and  authorized  the 
general  government  to  interfere  in  the  domestic  concerns  of  a 
State  has  treated  the  subject  as  political  in  its  nature,  and  placed 
the  power  in  the  hands  of  that  department. 


LUTHER   V.    BORDEN.  51 

The  fourth  section  of  the  fourth  article  of  the  Constitution  of 
the  United  States  provides  that  the  United  States  shall  guar- 
antee to  every  State  in  the  Union  a  republican  form  of  govern- 
ment, and  shall  protect  each  of  them  against  invasion;  and  on 
the  application  of  the  legislature  or  of  the  executive  (when  the  leg- 
islature cannot  be  convened)  against  domestic  violence. 

Under  this  article  of  the  Constitution  it  rests  with  Congress 
to  decide  what  government  is  the  established  one  in  a  State. 
For  as  the  United  States  guarantee  to  each  State  a  republican 
government,  Congress  must  necessarily  decide  what  government 
is  established  in  the  State  before  it  can  determine  whether  it  is 
republican  or  not.  And  when  the  senators  and  representatives 
of  a  State  are  admitted  into  the  councils  of  the  Union,  the  authority 
of  the  government  under  which  they  are  appointed,  as  well  as  its 
republican  character,  is  recognized  by  the  proper  constitutional 
authority.  And  its  decision  is  binding  on  every  other  department 
of  the  government,  and  could  not  be  questioned  in  a  judicial 
tribunal.  It  is  true  that  the  contest  in  this  case  did  not  last  long 
enough  to  bring  the  matter  to  this  issue;  and  as  no  senators  or 
representatives  were  elected  under  the  authority  of  the  govern- 
ment of  which  Mr.  Dorr  was  the  head,  Congress  was  not  called 
upon  to  decide  the  controversy.  Yet  the  right  to  decide  is  placed 
there,  and  not  in  the  courts. 

So,  too,  as  relates  to  the  clause  in  the  above-mentioned  article 
of  the  Constitution,  providing  for  cases  of  domestic  violence. 
It  rested  with  Congress,  too,  to  determine  upon  the  means  proper 
to  be  adopted  to  fulfil  this  guarantee.  They  might,  if  they  had 
deemed  it  most  advisable  to  do  so,  have  placed  it  in  the  power 
of  a  court  to  decide  when  the  contingency  had  happened  which 
required  the  federal  government  to  interfere.  But  Congress 
thought  otherwise,  and  no  doubt  wisely;  and  by  the  act  of  Febru- 
ary 28,  1795,  provided,  that,  "  in  case  of  an  insurrection  in  any 
State  against  the  government  thereof,  it  shall  be  lawful  for  the 
President  of  the  United  States,  on  application  of  the  legislature 
of  such  State  or  of  the  executive  (when  the  legislature  cannot  be 
convened),  to  call  forth  such  number  of  the  militia  of  any  other 
State  or  States,  as  may  be  applied  for,  as  he  may  judge  sufficient 
to  suppress  such  insurrection." 

By  this  act,  the  power  of  deciding  whether  the  exigency  had 
arisen  upon  which  the  government  of  the  United  States  is  bound 
to  interfere  is  given  to  the  President.  He  is  to  act  upon  the 
application  of  the  legislature  or  of  the  executive,  and  consequently 


62  LEGISLATIVE,   EXECUTIVE,    AND   JUDICIAL   POWERS. 

he  must  determine  what  body  of  men  constitute  the  legislature, 
and  who  is  the  governor,  before  he  can  act.  The  fact  that  both 
parties  claim  the  right  to  the  government  cannot  alter  the  case, 
for  both  cannot  be  entitled  to  it.  If  there  is  an  armed  conflict, 
like  the  one  of  which  we  are  speaking,  it  is  a  case  of  domestic 
violence,  and  one  of  the  parties  must  be  in  insurrection  against 
the  lawful  government.  And  the  President,  must,  of  necessity, 
decide  which  is  the  government,  and  which  party  is  unlawfully 
arrayed  against  it,  before  he  can  perform  the  duty  imposed  upon 
him  by  the  act  of  Congress. 

After  the  President  has  acted  and  called  out  the  militia,  is  a 
Circuit  Court  of  the  United  States  authorized  to  inquire  whether 
his  decision  was  right  ?  Could  the  court,  while  the  parties  were 
actually  contending  in  arms  for  the  possession  of  the  government, 
call  witnesses  before  it  and  inquire  which  party  represented  a 
majority  of  the  people  ?  If  it  could,  then  it  would  become  the 
duty  of  the  court  (provided  it  came  to  the  conclusion  that  the 
President  had  decided  incorrectly)  to  discharge  those  who  were 
arrested  or  detained  by  the  troops  in  the  service  of  the  United 
States  or  the  government  which  the  President  was  endeavoring 
to  maintain.  If  the  judicial  power  extends  so  far,  the  guarantee 
contained  in  the  Constitution  of  the  United  States  is  a  guarantee 
of  anarchy,  and  not  of  order.  Yet  if  this  right  does  not  reside  in 
the  courts  when  the  conflict  is  raging,  if  the  judicial  power  is  at 
that  time  bound  to  follow  the  decision  of  the  pohtical,  it  must 
be  equally  bound  when  the  contest  is  over.  It  cannot,  when 
peace  is  restored,  punish  as  offences  and  crimes  the  acts  which 
it  before  recognized,  and  was  bound  to  recognize,  as  lawful. 

It  is  true  that  in  this  case  the  militia  were  not  called  out  by 
the  President.  But  upon  the  application  of  the  governor  under 
the  charter  government,  the  President  recognized  him  as  the 
executive  power  of  the  State,  and  took  measures  to  call  out  the 
militia  to  support  his  authority  if  it  should  be  found  necessary 
for  the  general  government  to  interfere;  and  it  is  admitted  in  the 
argument,  that  it  was  the  knowledge  of  this  decision  that  put  an 
end  to  the  armed  opposition  to  the  charter  government,  and 
prevented  any  further  efforts  to  establish  by  force  the  proposed 
constitution.  The  interference  of  the  President,  therefore,  by 
announcing  his  determination,  was  as  effectual  as  if  the  militia 
had  been  assembled  under  his  orders.  And  it  should  be  equally 
authoritative.  For  certainly  no  court  of  the  United  States,  with 
a  knowledge  of  this  decision,  would  have  been  justified  in  recog- 


LUTHER   V.    BORDEN.  53 

nizing  the  opposing  party  as  the  lawful  government;  or  in  treating 
as  wrong-doers  or  insurgents  the  officers  of  the  government  which 
the  President  had  recognized,  and  was  prepared  to  support  by  an 
armed  force.  In  the  case  of  foreign  nations,  the  government 
acknowledged  by  the  President  is  always  recognized  in  the  courts 
of  justice.  And  this  principle  has  been  applied  by  the  act  of 
Congress  to  the  sovereign  States  of  the  Union.  .  .  . 

The  remaining  question  is  whether  the  defendants,  acting  under 
military  orders  issued  under  the  authority  of  the  government, 
were  justified  in  breaking  and  entering  the  plaintiff's  house.  In 
relation  to  the  act  of  the  legislature  declaring  martial  law,  it  is 
not  necessary  in  the  case  before  us  to  inquire  to  what  extent,  nor 
under  what  circumstances,  that  power  may  be  exercised  by  a 
State.  Unquestionably  a  military  government,  established  as 
the  permanent  government  of  the  State,  would  not  be  a  republican 
government,  and  it  would  be  the  duty  of  Congress  to  overthrow 
it.  But  the  law  of  Rhode  Island  evidently  contemplated  no  such 
government.  It  was  intended  merely  for  the  crisis,  and  to  meet 
the  peril  in  which  the  existing  government  was  placed  by  the 
armed  resistance  to  its  authority.  It  was  so  understood  and  con- 
strued by  the  State  authorities.  And,  unquestionably,  a  State 
may  use  its  military  power  to  put  down  an  armed  insurrection, 
too  strong  to  be  controlled  by  the  civil  authority.  The  power 
is  essential  to  the  existence  of  every  government,  essential  to  the 
preservation  of  order  and  free  institutions,  and  is  as  necessary  to 
the  States  of  this  Union  as  to  any  other  government.  The  State 
itself  must  determine  what  degree  of  force  the  crisis  demands. 
And  if  the  government  of  Rhode  Island  deemed  the  armed  opposi- 
tion so  formidable,  and  so  ramified  throughout  the  State,  as  to 
require  the  use  of  its  military  force  and  the  declaration  of  martial 
law,  we  see  no  ground  upon  which  this  court  can  question  its 
authority.  It  was  a  state  of  war;  and  the  established  govern- 
ment resorted  to  the  rights  and  usages  of  war  to  maintain  itself, 
and  to  overcome  the  unlawful  opposition.  And  in  that  state  of 
things  the  officers  engaged  in  its  military  service  might  laAV'fully 
arrest  any  one,  who,  from  the  information  before  them,  they  had 
reasonable  grounds  to  believe  was  engaged  in  the  insurrection; 
and  might  order  a  house  to  be  forcibly  entered  and  searched, 
when  there  were  reasonable  grounds  for  supposing  he  might  be 
there  concealed.  .  .  . 

Upon  the  whole,  we  see  no  reason  for  disturbing  the  judgment 
of  the  Circuit  Court.     The  admission  of  evidence  to  prove  that 


54  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

the  charter  government  was  the  established  government  of  the 
State  was  an  irregularity,  but  is  not  material  to  the  judgment. 
A  Circuit  Court  of  the  United  States  sitting  in  Rhode  Island  is 
presumed  to  know  the  constitution  and  law  of  the  State.  And 
in  order  to  make  up  its  opinion  upon  that  subject,  it  seeks  informa- 
tion from  any  authentic  and  available  source,  without  waiting  for 
the  formal  introduction  of  testimony  to  prove  it,  and  without  con- 
fining itself  to  the  process  which  the  parties  may  offer.  But  this 
error  of  the  Circuit  Court  does  not  affect  the  result.  For  whether 
this  evidence  was  or  was  not  received,  the  Circuit  Court,  for  the 
reasons  herein  before  stated,  was  bound  to  recognize  that  govern- 
ment as  the  paramount  and  established  authority  of  the  State. 

Much  of  the  argument  on  the  part  of  the  plaintiff  turned  upon 
political  rights  and  political  questions,  upon  which  the  court  has 
been  urged  to  express  an  opinion.  We  decline  doing  so.  The 
high  power  has  been  conferred  on  this  court  of  passing  judgment 
upon  the  acts  of  the  State  sovereignties,  and  of  the  legislative  and 
executive  branches  of  the  federal  government,  and  of  determining 
whether  they  are  beyond  the  limits  of  power  marked  out  for  them 
respectively  by  the  constitution  of  the  United  States.  This 
tribunal,  therefore,  should  be  the  last  to  overstep  the  boundaries 
which  limit  its  own  jurisdiction.  And  while  it  should  always  be 
ready  to  meet  any  question  confided  to  it  by  the  Constitution,  it  is 
equally  its  duty  not  to  pass  beyond  its  appropriate  sphere  of 
action,  and  to  take  care  not  to  involve  itself  in  discussions  which 
properly  belong  to  other  forums.  .  .  . 

The  judgment  of  the  Circuit  Court  must,  therefore,  be 

Affirmed. 

Woodbury,  J.,  dissenting.  ... 


THE   PRIZE    CASES.  55 

THE   PRIZE  CASES. 
Supreme  Court  of  the  United  States.     1862. 
[2  Black,  635.] 

These  were  cases  in  which  the  vessels  named,  together  with 
their  cargoes,  were  severally  captured  and  brought  in  as  prizes 
by  public  ships  of  the  United  States.  The  libels  were  filed  by 
the  proper  District  Attorneys,  on  behalf  of  the  United  States 
and  on  behalf  of  the  officers  and  crews  of  the  ships,  by  which  the 
captures  were  respectively  made.  In  each  case  the  District  Court 
pronounced  a  decree  of  condemnation,  from  which  the  claimants 
took  an  appeal.  ... 

The  case  of  the  Amy  Warwick  was  argued  by  Dana  for  libellants, 
and  by  Bangs  for  claimants.  The  Crenshaw,  by  Fames  for  libel- 
lants, and  by  Lord,  Edwards,  and  Donahue  for  claimants.  The 
Hiawatha,  by  Evarts  and  Sedgwick  for  libellants,  and  by  Edwards 
for  claimants.  The  Brilliante,  by  Evans  for  libellants,  and  by 
Carlisle  for  claimants. 

Grier,  J.  .  .  . 

Had  the  President  a  right  to  institute  a  blockade  of  ports  in 
possession  of  persons  in  armed  rebellion  against  the  government, 
on  the  principles  of  international  law,  as  known  and  acknowledged 
among  civilized  states  ?  .  .  . 

Neutrals  have  a  right  to  challenge  the  existence  of  a  blockade 
de  facto,  and  also  the  authority  of  the  party  exercising  the  right 
to  institute  it.  They  have  a  right  to  enter  the  ports  of  a  friendly 
nation  for  the  purposes  of  trade  and  commerce,  but  are  bound  to 
recognize  the  rights  of  a  belligerent  engaged  in  actual  war,  to  use 
this  mode  of  coercion,  for  the  purpose  of  subduing  the  enemy. 

That  a  blockade  de  facto  actually  existed,  and  was  formally 
declared  and  notified  by  the  President  on  the  27th  and  30th  of 
April,  1861,  is  an  admitted  fact  in  these  cases. 

That  the  President,  as  the  Executive  Chief  of  the  Government 
and  Commander-in-chief  of  the  Army  and  Navy,  was  the  proper 
person  to  make  such  notification,  has  not  been,  and  cannot  be 
disputed. 

The  right  of  prize  and  capture  has  its  origin  in  the  "/us  belli," 
and  is  governed  and  adjudged  under  the  law  of  nations.  To 
legitimate  the  capture  of  a  neutral  vessel  or  property  on  the  high 
seas,  a  war  must  exist  de  facto,  and  the  neutral  must  have  a  knowl- 
edge or  notice  of  the  intention  of  one  of  the  parties  belligerent 


56  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

to  use  this  mode  of  coercion  against  a  port,  city,  or  territory,  in 
possession  of  the  other. 

Let  us  inquire  whether,  at  the  time  this  blockade  was  insti- 
tuted, a  state  of  war  existed  which  would  justify  a  resort  to  these 
means  of  subduing  the  hostile  force.  .  .  . 

As  a  civil  war  is  never  publicly  proclaimed,  eo  nomine,  against 
insurgents,  its  actual  existence  is  a  fact  in  our  domestic  history 
which  the  court  is  bound  to  notice  and  to  know.  .  .  . 

By  the  Constitution,  Congress  alone  has  the  power  to  declare 
a  national  or  foreign  war.  It  cannot  declare  war  against  a  State, 
or  any  number  of  States,  by  virtue  of  any  clause  in  the  constitu- 
tion. The  Constitution  confers  on  the  President  the  whole  exec- 
utive power.  He  is  bound  to  take  care  that  the  laws  be  faithfully 
executed.  He  is  Commander-in-chief  of  the  Army  and  Navy  of 
the  United  States,  and  of  the  militia  of  the  several  States  when 
called  into  the  actual  service  of  the  United  States.  He  has  no 
power  to  initiate  or  declare  a  war  either  against  a  foreign  nation 
or  a  domestic  State.  But  by  the  acts  of  Congress  of  February 
28th,  1795,  and  3d  of  March,  1807,  he  is  authorized  to  call  out  the 
militia  and  use  the  military  and  naval  forces  of  the  United  States 
in  case  of  invasion  by  foreign  nations,  and  to  suppress  insurrection 
against  the  government  of  a  State  or  of  the  United  States. 

If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  President 
is  not  only  authorized  but  bound  to  resist  force  by  force.  He 
does  not  initiate  the  war,  but  is  bound  to  accept  the  challenge 
without  waiting  for  any  special  legislative  authority.  And  whether 
the  hostile  party  be  a  foreign  invader,  or  States  organized  in  re- 
bellion, it  is  none  the  less  a  war.  .  .  . 

This  greatest  of  civil  wars  was  not  gradually  developed  by 
popular  commotion,  tumultuous  assemblies,  or  local  unorganized 
insurrections.  However  long  may  have  been  its  previous  con- 
ception, it  nevertheless  sprung  forth  suddenly  from  the  parent 
brain,  a  Minerva  in  the  full  panoply  of  war.  The  President  was 
bound  to  meet  it  in  the  shape  it  presented  itself,  without  waiting 
for  Congress  to  baptize  it  with  a  name;  and  no  name  given  to 
it  by  him  or  them  could  change  the  fact. 

It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile 
array,  because  it  may  be  called  an  "  insurrection  "  by  one  side, 
and  the  insurgents  be  considered  as  rebels  or  traitors.  It  is  not 
necessary  that  the  independence  of  the  revolted  province  or  State 
be  acknowledged  in  order  to  constitute  it  a  party  belligerent  in  a 
war  according  to  the  law  of  nations.  .  .  . 


THE    PRIZE   CASES.  57 

Whether  the  President  in  fulfiUing  his  duties,  as  Commander- 
in-chief,  in  suppressing  an  insurrection,  has  met  with  such  armed 
hostile  resistance,  and  a  civil  war  of  such  alarming  proportions 
as  will  compel  him  to  accord  to  them  the  character  of  belligerents, 
is  a  question  to  be  decided  by  him,  and  this  court  must  be  governed 
by  the  decisions  and  acts  of  the  political  department  of  the  govern- 
ment to  which  this  power  was  intrusted.  "  He  must  determine 
what  degree  of  force  the  crisis  demands."  The  proclamation  of 
blockade  is  itself  official  and  conclusive  evidence  to  the  court  that 
a  state  of  war  existed  which  demanded  and  authorized  a  recourse 
to  such  a  measure,  under  the  circumstances  peculiar  to  the  case. 

The  correspondence  of  Lord  Lyons  with  the  Secretary  of  State 
admits  the  fact  and  concludes  the  question. 

If  it  were  necessary  to  the  technical  existence  of  a  war,  that  it 
should  have  a  legislative  sanction,  we  find  it  in  almost  every  act 
passed  at  the  extraordinary  session  of  the  legislature  of  1861, 
which  was  wholly  employed  in  enacting  laws  to  enable  the  gov- 
ernment to  prosecute  the  war  with  vigor  and  efficiency.  And 
finally,  in  1861,  we  find  Congress  "  ex  majore  cautela  "  and  in 
anticipation  of  such  astute  objections,  passing  an  act  "  approv- 
ing, legalizing,  and  making  valid  all  the  acts,  proclamations,  and 
orders  of  the  President,  &c.,  as  if  they  had  been  issued  and  done 
under  the  previous  express  authority  and  direction  of  the  Congress 
of  the  United  States." 

Without  admitting  that  such  an  act  was  necessary  under  the 
circumstances,  it  is  plain  that  if  the  President  had  in  any  manner 
assumed  powers  which  it  was  necessary  should  have  the  authority 
or  sanction  of  Congress,  that  on  the  well  known  principle  of  law, 
"  omnis  ratihabitio  retrotrahitur  et  mandato  equiparatur,"  this 
ratification  has  operated  to  perfectly  cure  the  defect.  .  .  . 

The  objection  made  to  this  act  of  ratification,  that  it  is  ex  post 
facto,  and  therefore  unconstitutional  and  void,  might  possibly  have 
some  weight  on  the  trial  of  an  indictment  in  a  criminal  court. 
But  precedents  from  that  source  cannot  be  received  as  authori- 
tative in  a  tribunal  administering  public  and  international  law. 

On  this  first  question  therefore  we  are  of  the  opinion  that  the 
President  had  a  right,  jure  belli,  to  institute  a  blockade  of  ports 
in  possession  of  the  States  in  rebellion,  which  neutrals  are  bound 
to  regard.    .  .  . 

We  now  proceed  to  notice  the  facts  peculiar  to  the  several  cases. 
.  .  .  The  principles  which  have  just  been  stated  apply  alike 
to  all.  .  .  . 


68  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

The  brig  Amy  Warwick  .  .  .  was  captured  upon  the  high  seas 
by  the  United  States  gunboat  Quaker  City,  and  with  her  cargo 
was  sent  into  the  District  of  Massachusetts  for  condemnation. 
The  brig  was  claimed  by  David  Currie  and  others.  The  cargo 
consisted  of  coffee,  and  was  claimed,  four  hundred  bags  by  Edmund 
Davenport  &  Co.,  and  four  thousand  seven  hundred  bags  by 
Dunlap,  Moncure  &  Co.  The  title  of  these  parties  as  respectively 
claimed  was  conceded.  All  the  claimants  at  the  time  of  the 
capture,  and  for  a  long  time  before,  were  residents  of  Richmond, 
Va.,  and  were  engaged  in  business  there.  Consequently,  their 
property  was  justly  condemned  as  "  enemies'  property."  .  .  . 

The  case  presents  no  question  but  that  of  enemies'  property. 

The  decree  below  is  affirmed  with  costs.^  .  .  . 

Nelson,  J.,  dissenting.  .  .  . 

Taney,  C.  J.,  Catron,  J,,  and  Clifford,  J.,  concurred  in  the 
dissenting  opinion.  .  .  . 


Ex  parte  MILLIGAN. 
Supreme  Court  of  the  United  States.     1866. 

[4  Wallace,  2.V 

This  case  came  before  the  court  on  certificate  of  division  from 
the  Circuit  Court  for  the  District  of  Indiana  on  a  petition  for 
discharge  from  unlawful  imprisonment.  The  act  of  March  "■  3, 
1863  (12  U.  S.  St.  at  Large,  755)  authorized  the  President  to 
suspend  the  writ  of  habeas  corpus  throughout  the  United  States 
during  the  Civil  War,  and  required  that  lists  of  prisoners  who  were 
citizens  of  States  wherein  the  administration  of  law  by  the  federal 
courts  had  been  unimpaired,  and  who  were  held  by  the  United 
States  otherwise  than  as  prisoners  of  war,  should  be  furnished 
to  the  judges  of  the  federal  courts,  and  also  that,  in  case  a  grand 
jury  of  such  a  court  should  fail  to  indict  a  person  on  the  list,  the 
judge  should  make  an  order  that  such  prisoner  should  be  brought 
before  the  court  to  be  discharged  on  entering  into  recognizance, 
if   required,  for  good  behavior  or  for  future  appearance.      The 

1  In  The  Protector,  12  Wall.  700  (1871),  the  dates  of  the  beginning  and  end  of 
the  Civil  War  being  important  for  purposes  of  the  Statute  of  Limitations,  it  was 
held  that  those  dates  were  determined  by  the  President's  proclamations. — Ed. 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


Ex  parte  milligan.  59 

President  by  proclamation,  Sept.  15,  1863  (13  U.  S.  St.  at  Large, 
734),  recited  this  statute  and  suspended  the  privilege  of  the  writ 
in  cases  where  persons  were  held  by  the  United  States  as  prisoners 
of  war,  spies,  aiders  or  abettors  of  the  enemy,  or  for  resisting  a 
draft,  or  for  any  offence  against  the  military  or  naval  service. 
On  Oct.  5,  1864,  MilHgan,  a  citizen  of  Indiana,  was  arrested  in 
that  State  by  order  of  the  military  commandant  of  the  District 
of  Indiana.  On  Oct.  21,  1864,  he  was  brought  before  a  mili- 
tary commission  convoked  by  the  commandant.  He  was  found 
guilty  of  conspiring  against  the  government  of  the  United  States, 
affording  aid  and  comfort  to  the  enemy,  inciting  insurrection,  and 
violating  the  laws  of  war.  He  was  sentenced  to  death,  and  the 
sentence  was  approved  by  President  Johnson,  the  execution  to 
occur  on  May  19,  1865.  On  Jan.  2,  1865,  after  the  proceedings 
of  the  military  commission  were  at  an  end,  the  Circuit  Court  met 
in  Indiana,  and  impaneled  a  grand  jury;  and  on  Jan.  27,  1865, 
the  court  adjourned,  neither  that  grand  jury  nor  any  other  having 
found  an  indictment  against  Milligan.  On  May  10,  1865,  Milligan 
filed  his  petition,  stating  the  facts  and  praying  that  he  be  brought 
before  the  court  in  accordance  with  the  act  of  Congress,  and  that 
he  be  either  turned  over  to  the  proper  civil  tribunal  or  discharged 
from  custody.  The  opinions  of  the  judges  were  opposed  on  the 
following  three  questions  certified :  — 

1st.  On  the  facts  stated,  ought  a  writ  of  habeas  corpus  to  be 
issued  ? 

2d.  On  the  facts  stated,  ought  Milligan  to  be  discharged  from 
custody  ? 

3d.  Whether,  on  the  facts  stated,  the  military  commission  had 
jurisdiction  legally  to  try  and  sentence  Milligan. 

/.  E.  McDonald,  J.  S.  Black,  J.  A.  Garfield,  and  D.  D.  Field, 
for  the  petitioner.  Speed,  A.  G.,  Stanbery,  and  B.  F.  Butler,  special 
counsel  for  the  United  States,  contra. 

Davis,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  controlling  question  in  this  case  is  this:  Upon  the  facts 
stated  in  Milligan's  petition,  and  the  exhibits  filed,  had  the  mili- 
tary commission  mentioned  in  it  jurisdiction,  legally,  to  try  and 
sentence  him  ?  Milligan,  not  a  resident  of  one  of  the  rebellious 
states,  or  a  prisoner  of  war,  but  a  citizen  of  Indiana  for  twenty 
years  past,  and  never  in  the  military  or  naval  service,  is,  while  at 
his  home,  arrested  by  the  military  power  of  the  United  States, 
imprisoned,  and,  on  certain  criminal  charges  preferred  against 
him,  tried,  convicted,  and  sentenced  to  be  hanged  by  a  military 


60  LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL   POWERS. 

commission,  organized  under  the  direction  of  the  military  com- 
mander of  the  miUtary  district  of  Indiana.  Had  this  tribunal 
the  legal  power  and  authority  to  try  and  punish  this  man  ? 

No  graver  question  was  ever  considered  by  this  court,  nor 
one  which  more  nearly  concerns  the  rights  of  the  whole  people; 
for  it  is  the  birthright  of  every  American  citizen,  when  charged 
with  crime,  to  be  tried  and  punished  according  to  law.  The  power 
of  punishment  is  alone  through  the  means  which  the  laws  have 
provided  for  that  purpose,  and  if  they  are  ineffectual,  there  is  an 
immunity  from  punishment,  no  matter  how  great  an  offender  the 
individual  may  be,  or  how  much  his  crimes  may  have  shocked 
the  sense  of  justice  of  the  country,  or  endangered  its  safety.  By 
the  protection  of  the  law  human  rights  are  secured;  withdraw 
that  protection,  and  they  are  at  the  mercy  of  wicked  rulers,  or 
the  clamor  of  an  excited  people.  If  there  was  law  to  justify  this 
military  trial,  it  is  not  our  province  to  interfere;  if  there  was  not, 
it  is  our  duty  to  declare  the  nullity  of  the  whole  proceedings. 
The  decision  of  this  question  does  not  depend  on  argument  or 
judicial  precedents,  numerous  and  highly  illustrative  as  they  are. 
These  precedents  inform  us  of  the  extent  of  the  struggle  to  preserve 
liberty  and  to  relieve  those  in  civil  life  from  military  trials.  The 
founders  of  our  government  were  familiar  with  the  history  of  that 
struggle;  and  secured  in  a  written  constitution  every  right  which 
the  people  had  wrested  from  power  during  a  contest  of  ages.  By 
that  Constitution  and  the  laws  authorized  by  it  this  question 
must  be  determined.  .  .  . 

Have  any  of  the  rights  guaranteed  by  the  Constitution  been 
violated  in  the  case  of  Milligan  ?  and  if  so,  what  are  they  ? 

Every  trial  involves  the  exercise  of  judicial  power;  and  from 
what  'source  did  the  military  commission  that  tried  him  derive 
their  authority  ?  Certainly  no  part  of  the  judicial  power  of  the 
country  was  conferred  on  them;  because  the  constitution  ex- 
pressly vests  it  "in  one  supreme  court  and  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  establish," 
and  it  is  not  pretended  that  the  commission  was  a  court  ordained 
and  established  by  Congress.  They  cannot  justify  on  the  man- 
date of  the  President;  because  he  is  controlled  by  law,  and  has 
his  appropriate  sphere  of  duty,  which  is  to  execute,  not  to  make, 
the  laws;  and  there  is  "no  unwritten  criminal  code  to  which 
resort  can  be  had  as  a  source  of  jurisdiction." 

But  it  is  said  that  the  jurisdiction  is  complete  under  the  "  laws 
and  usages  of  war." 


Ex  parte  milligan.  61 

It  can  serve  no  useful  purpose  to  inquire  what  those  laws  and 
usages  are,  whence  they  originated,  where  found,  and  on  whom 
they  operate;  they  can  never  be  apphed  to  citizens  in  States  which 
have  upheld  the  authority  of  the  government,  and  where  the 
courts  are  open  and  their  process  unobstructed.  This  court  has 
judicial  knowledge  that  in  Indiana  the  federal  authority  was 
always  unopposed,  and  its  courts  always  open  to  hear  criminal 
accusations  and  redress  grievances;  and  no  usage  of  war  could 
sanction  a  military  trial  there  for  any  offence  whatever  of  a  citizen 
in  civil  life,  in  nowise  connected  with  the  military  service.  Con- 
gress could  grant  no  such  power;  and  to  the  honor  of  our  national 
legislature  be  it  said,  it  has  never  been  provoked  by  the  state  of 
the  country  even  to  attempt  its  exercise.  One  of  the  plainest 
constitutional  provisions  was,  therefore,  infringed  when  Milligan 
was  tried  by  a  court  not  ordained  and  established  by  Congress, 
and  not  composed  of  judges  appointed  during  good  behavior.  .  .  . 

It  is  claimed  that  martial  law  covers  with  its  broad  mantle  the 
proceedings  of  this  military  commission.  The  proposition  is  this: 
that  in  a  time  of  war  the  commander  of  an  armed  force  (if  in  his 
opinion  the  exigencies  of  the  country  demand  it,  and  of  which  he 
is  to  judge)  has  the  power,  within  the  lines  of  his  military  district, 
to  suspend  all  civil  rights  and  their  remedies,  and  subject  citizens 
as  well  as  soldiers  to  the  rule  of  his  will;  and  in  the  exercise  of  his 
lawful  authority  cannot  be  restrained,  except  by  his  superior 
officer  or  the  President  of  the  United  States. 

If  this  position  is  sound  to  the  extent  claimed,  then  when  war 
exists,  foreign  or  domestic,  and  the  country  is  subdivided  into 
military  departments  for  mere  convenience,  the  commander  of 
one  of  them  can,  if  he  chooses,  within  his  limits,  on  the  plea  of 
necessity,  with  the  approval  of  the  Executive,  substitute  military 
force  for  and  to  the  exclusion  of  the  laws,  and  punish  all  persons, 
as  he  thinks  right  and  proper,  without  fixed  or  certain  rules. 

The  statement  of  this  proposition  shows  its  importance;  for, 
if  true,  republican  government  is  a  failure,  and  there  is  an  end  of 
liberty  regulated  by  law.  Martial  law,  established  on  such  a 
basis,  destroys  every  guarantee  of  the  Constitution,  and  effectually 
renders  the  "  military  independent  of  and  superior  to  the  civil 
power  "  —  the  attempt  to  do  which  by  the  King  of  Great  Britain 
was  deemed  by  our  fathers  such  an  offence  that  they  assigned  it 
to  the  world  as  one  of  the  causes  which  impelled  them  to  declare 
their  independence.  Civil  liberty  and  this  kind  of  martial  law 
cannot  endure  together;  the  antagonism  is  irreconcilable;  and, 
in  the  conflict,  one  or  the  other  must  perish. 


62  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

This  nation,  as  experience  has  proved,  cannot  always  remain 
at  peace,  and  has  no  right  to  expect  that  it  will  always  have  wise 
and  humane  rulers,  sincerely  attached  to  the  principles  of  the 
Constitution.  Wicked  men,  ambitious  of  power,  with  hatred  of 
liberty  and  contempt  of  law,  may  fill  the  place  once  occupied  by 
Washington  and  Lincoln;  and  if  this  right  is  conceded,  and  the 
calamities  of  war  again  befall  us,  the  dangers  to  human  liberty 
are  frightful  to  contemplate.  If  our  fathers  had  failed  to  provide 
for  just  such  a  contingency,  they  would  have  been  false  to  the 
trust  reposed  in  them.  They  knew  —  the  history  of  the  world 
told  them  —  the  nation  they  were  founding,  be  its  existence  short 
or  long,  would  be  involved  in  war;  how  often  or  how  long  continued 
human  foresight  could  not  tell;  and  that  unlimited  power,  where- 
ever  lodged  at  such  a  time,  was  especially  hazardous  to  freemen. 
For  this,  and  other  equally  weighty  reasons,  they  secured  the  in- 
heritance they  had  fought  to  maintain,  by  incorporating  in  a 
written  constitution  the  safeguards  which  time  had  proved  were 
essential  to  its  preservation.  Not  one  of  these  safeguards  can 
the  President,  or  Congress,  or  the  Judiciary  disturb,  except  the 
one  concerning  the  writ  of  habeas  corpus.  .  .  . 

It  will  be  borne  in  mind  that  this  is  not  a  question  of  the  power 
to  proclaim  martial  law,  when  war  exists  in  a  community  and  the 
courts  and  civil  authorities  are  overthrown.  Nor  is  it  a  question 
what  rule  a  military  commander,  at  the  head  of  his  army,  can 
impose  on  States  in  rebellion  to  cripple  their  resources  and  quell 
the  insurrection.  The  jurisdiction  claimed  is  much  more  exten- 
sive. The  necessities  of  the  service,  during  the  late  Rebellion, 
required  that  the  loyal  States  should  be  placed  within  the  limits 
of  certain  military  districts  and  commanders  appointed  in  them; 
and  it  is  urged  that  this,  in  a  mihtary  sense,  constituted  them 
the  theatre  of  military  operations;  and,  as  in  this  case,  Indiana 
had  been  and  was  again  threatened  with  invasion  by  the  enemy, 
the  occasion  was  furnished  to  establish  martial  law.  The  conclu- 
sion does  not  follow  from  the  premises.  If  armies  were  collected 
in  Indiana,  they  were  to  be  employed  in  another  locality,  where 
the  laws  were  obstructed  and  the  national  authority  disputed. 
On  her  soil  there  was  no  hostile  foot;  if  once  invaded,  that  invasion 
was  at  an  end,  and  with  it  all  pretext  for  martial  law.  Martial 
law  cannot  rise  from  a  threatened  invasion.  The  necessity  must 
be  actual  and  present;  the  invasion  real,  such  as  effectually  closes 
the  courts  and  deposes  the  civil  administration.  .  .  . 


Ex  parte  milligan.  63 

From  the  first  year  of  the  reign  of  Edward  the  Third,  when  the 
Parliament  of  England  reversed  the  attainder  of  the  Earl  of  Lan- 
caster, because  he  could  have  been  tried  by  the  courts  of  the  realm, 
and  declared,  "  that  in  time  of  peace  no  man  ought  to  be  adjudged 
to  death  for  treason  or  any  other  offence  without  being  arraigned 
and  held  to  answer;  and  that  regularly  when  the  king's  courts 
are  open  it  is  a  time  of  peace  in  judgment  of  law,"  down  to  the 
present  day,  martial  law,  as  claimed  in  this  case,  has  been  con- 
demned by  all  respectable  English  jurists  as  contrary  to  the 
fundamental  laws  of  the  land,  and  subversive  of  the  liberty  of  the 
subject.  .  .  . 

To  the  third  question,  then,  on  which  the  judges  below  were 
opposed  in  opinion,  an  answer  in  the  negative  must  be  re- 
turned. .  .  . 

The  two  remaining  questions  in  this  case  must  be  answered  in 
the  affirmative.  .  .  . 

Chase,  C.  J.,  delivered  the  following  opinion. 

Four  members  of  the  court,  concurring  with  their  brethren  in 
the  order  heretofore  made  in  this  cause,  but  unable  to  concur  in 
some  important  particulars  with  the  opinion  which  has  just  been 
read,  think  it  their  duty  to  make  a  separate  statement  of  their 
views  of  the  whole  case.  .  .  . 

The  first  two  questions  certified  must  receive  affirmative  an- 
swers, and  the  last  a  negative.  We  do  not  doubt  that  the  positive 
provisions  of  the  act  of  Congress  require  such  answers.  We  do 
not  think  it  necessary  to  look  beyond  these  provisions.  In  them 
we  find  sufficient  and  controlling  reasons  for  our  conclusions. 

But  the  opinion  which  has  just  been  read  goes  further;  and 
as  we  understand  it,  asserts  not  only  that  the  military  commission 
held  in  Indiana  was  not  authorized  by  Congress,  but  that  it  was 
not  in  the  power  of  Congress  to  authorize  it;  from  which  it  may 
be  thought  to  follow  that  Congress  has  no  power  to  indemnify 
the  officers  who  composed  the  commission  against  liability  in  civil 
courts  for  acting  as  members  of  it. 

We  cannot  agree  to  this. 

We  agree  in  the  proposition  that  no  department  of  the  govern- 
ment of  the  United  States  —  neither  President,  nor  Congress, 
nor  the  courts  —  possesses  any  power  not  given  by  the  Constitu- 
tion. .  .  . 

We  think  that  Congress  had  power,  though  not  exercised,  to 
authorize  the  military  commission  which  was  held  in  Indiana.  .  .  . 


64  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

The  Constitution  itself  provides  for  military  government  as 
well  as  for  civil  government.  And  we  do  not  understand  it  to  be 
claimed  that  the  civil  safeguards  of  the  constitution  have  appli- 
cation in  cases  within  the  proper  sphere  of  the  former. 

What,  then,  is  that  proper  sphere  ?  Congress  has  power  to 
raise  and  support  armies;  to  provide  and  maintain  a  navy;  to 
make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces;  and  to  provide  for  governing  such  part  of  the  militia 
as  may  be  in  the  service  of  the  United  States.  .  .  . 

But  we  do  not  put  our  opinion,  that  Congress  might  authorize 
such  a  military  commission  as  was  held  in  Indiana,  upon  the 
power  to  provide  for  the  government  of  the  national  forces. 

Congress  has  the  power  not  only  to  raise  and  support  and  govern 
armies  but  to  declare  war.  It  has,  therefore,  the  power  to  provide 
by  law  for  carrying  on  war.  This  power  necessarily  extends  to 
all  legislation  essential  to  the  prosecution  of  war  with  vigor  and 
success,  except  such  as  interferes  with  the  command  of  the  forces 
and  the  conduct  of  campaigns.  That  power  and  duty  belong  to 
the  President  as  commander-in-chief.  Both  these  powers  are 
derived  from  the  Constitution,  but  neither  is  defined  by  that 
instrument.  Their  extent  must  be  determined  by  their  nature, 
and  by  the  principles  of  our  institutions. 

The  power  to  make  the  necessary  laws  is  in  Congress;  the  power 
to  execute  in  the  President.  Both  powers  imply  many  subordinate 
and  auxiliary  powers.  Each  includes  all  authorities  essential  to 
its  due  exercise.  But  neither  can  the  President,  in  war  more  than 
in  peace,  intrude  upon  the  proper  authority  of  Congress,  nor  Con- 
gress upon  the  proper  authority  of  the  President.  Both  are 
servants  of  the  people,  whose  will  is  expressed  in  the  fundamental 
law.  Congress  cannot  direct  the  conduct  of  campaigns,  nor  can 
the  President,  or  any  commander  under  him,  without  the  sanction 
of  Congress,  institute  tribunals  for  the  trial  and  punishment  of 
offences,  either  of  soldiers  or  civilians,  unless  in  cases  of  a  con- 
trolling necessity,  which  justifies  what  it  compels,  or  at  least 
insures  acts  of  indemnity  from  the  justice  of  the  legislature. 

We  by  no  means  assert  that  Congress  can  establish  and  apply 
the  laws  of  war  where  no  war  has  been  declared  or  exists. 

Where  peace  exists  the  laws  of  peace  must  prevail.  What  we 
do  maintain  is,  that  when  the  nation  is  involved  in  war,  and  some 
portions  of  the  country  are  invaded,  and  all  are  exposed  to  inva- 
sion, it  is  within  the  power  of  Congress  to  determine  in  what  States 


Ex  parte  milligan.  65 

or  districts  such  great  and  imminent  public  danger  exists  as  jus- 
tifies the  authorization  of  mihtary  tribunals  for  the  trial  of  crimes 
and  offences  against  the  discipline  or  security  of  the  army  or 
against  the  public  safety.  .  .  . 

We  have  confined  ourselves  to  the  question  of  power.  It  was 
for  Congress  to  determine  the  question  of  expediency.  And 
Congress  did  determine  it.  That  body  did  not  see  fit  to  authorize 
trials  by  military  commission  in  Indiana,  but  by  the  strongest 
implication  prohibited  them.  .  .  . 

There  are  under  the  Constitution  three  kinds  of  military  juris- 
diction: one  to  be  exercised  both  in  peace  and  war;  another  to  be 
exercised  in  time  of  foreign  war  without  the  boundaries  of  the 
United  States,  or  in  time  of  rebeUion  and  civil  war  within  States 
or  districts  occupied  by  rebels  treated  as  belligerents;  and  a  third 
to  be  exercised  in  time  of  invasion  or  insurrection  within  the 
hmits  of  the  United  States,  or  during  rebellion  within  the  hmits 
of  States  maintaining  adhesion  to  the  National  Government,  when 
the  public  danger  requires  its  exercise.  The  first  of  these  may  be 
called  jurisdiction  under  military  law',  and  is  found  in  acts  of 
Congress  prescribing  rules  and  articles  of  war,  or  otherwise  pro- 
viding for  the  government  of  the  national  forces ;  the  second  may 
be  distinguished  as  military  government,  superseding,  as  far 
as  may  be  deemed  expedient,  the  local  law,  and  exercised  by  the 
military  commander  under  the  direction  of  the  President,  with 
the  express  or  implied  sanction  of  Congress;  while  the  third  may 
be  denominated  martial  law  proper,  and  is  called  into  action 
by  Congress,  or  temporarily,  when  the  action  of  Congress  cannot 
be  invited,  and  in  the  case  of  justifying  or  excusing  peril,  by  the 
President,  in  times  of  insurrection  or  invasion,  or  of  civil  or  foreign 
war,  within  districts  or  localities  where  ordinary  law  no  longer 
adequately  secures  public  safety  and  private  rights. 

We  think  that  the  power  of  Congress,  in  such  times  and  in  such 
localities,  to  authorize  trials  for  crimes  against  the  security  and 
safety  of  the  national  forces,  may  be  derived  from  its  constitutional 
authority  to  raise  and  support  armies  and  to  declare  war,  if  not 
from  its  constitutional  authority  to  provide  for  governing  the 
national  forces. 

We  have  no  apprehension  that  this  power,  under  our  American 
system  of  government,  in  which  all  official  authority  is  derived 
from  the  people,  and  exercised  under  direct  responsibility  to  the 
people,  is  more  likely  to  be  abused  than  the  power  to  regulate 
commerce,  or  the  power  to  borrow  money.     And  we  are  unwilling 


66  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

to  give  our  assent  by  silence  to  expressions  of  opinion  which  seem 
to  us  calculated,  though  not  intended,  to  cripple  the  constitutional 
powers  of  the  government,  and  to  augment  the  public  dangers  in 
times  of  invasion  and  rebellion. 

Mr.  Justice  Wayne,  Mr.  Justice  Swayne,  and  Mr.  Justice 
Miller,  concur  with  me  in  these  views.^ 


MISSISSIPPI  V.  JOHNSON. 

Supreme  Court  of  the  United  States.     1867. 

[4  Wallace,  475.] 

This  was  a  motion  made  by  Messrs.  Sharkey  and  R.  J.  Walker, 
on  behalf  of  the  State  of  Mississippi,  for  leave  to  file  a  bill  in  the 
name  of  the  State  praying  this  court  perpetually  to  enjoin  and 
restrain  Andrew  Johnson,  a  citizen  of  the  State  of  Tennessee  and 
President  of  the  United  States,  and  his  officers  and  agents  appointed 
for  that  purpose,  and  especially  E.  O.  C.  Ord,  assigned  as  military 
commander  of  the  district  where  the  State  of  Mississippi  is,  from 
executing  or  in  any  manner  carrying  out  two  acts  of  Congress 
named  in  the  bill,  one  "  An  act  for  the  more  efficient  government 
of  the  rebel  States,"  passed  March  2d,  1867,  notwithstanding  the 
President's  veto  of  it  as  unconstitutional,  and  the  other  an  act 
supplementary  to  it,  passed  in  the  same  way  March  23d,  1867; 
acts  commonly  called  the  Reconstruction  Acts. 

The  former  of  these  acts,  reciting  that  no  legal  State  govern- 
ments or  adequate  protection  for  life  or  property  now  exists  in 
the  rebel  States  of  Virginia,  North  Carolina,  South  Carolina, 
Georgia,  Mississippi,  Alabama,  Louisiana,  Florida,  Texas,  and 
Arkansas,  and  that  it  was  necessary  that  peace  and  good  order 
should  be  enforced  in  them  until  loyal  and  republican  State  gov- 
ernments, could  be  legally  established  divided  the  States  named 
into  five  military  districts,  and  made  it  the  duty  of  the  President 
to  assign  to  each  one  an  officer  of  the  army,  and  to  detail  a  suffi- 
cient military  force  to  enable  him  to  perform  his  duties  and  enforce 

'  On  courts  martial,  see  Dynes  v.  Hoover,  20  How.  65  (1857),  and  Carter 
».  McClaughry,  183  U.  S.  365  (1902).  —  Ed. 


MISSISSIPPI   V.    JOHNSON.  67 

his  authority  within  his  district.  It  made  it  the  duty  of  this 
officer  to  protect  all  persons  in  their  rights,  to  suppress  insurrec- 
tion, disorder,  violence,  and  to  punish,  or  cause  to  be  punished, 
all  disturbers  of  the  public  peace  and  criminals,  either  through 
the  local  civil  tribunals  or  through  military  commissions,  which  the 
act  authorized.  It  provided,  further,  that  on  the  formation  of 
new  constitutions  and  certain  conditions  which  the  act  prescribed, 
the  States  respectively  should  be  declared  entitled  to  represen- 
tation in  Congress  and  the  preceding  part  of  the  act  become 
inoperative;  and  that  until  they  were  so  admitted  any  civil 
governments  which  might  exist  in  them  should  be  deemed  pro- 
visional only,  and  subject  to  the  paramount  authority  of  the 
United  States,  at  any  time  to  aboUsh,  modify,  control,  or  super- 
sede it. 

The  second  of  the  two  acts  related  chiefly  to  the  registration 
of  voters  who  were  to  form  the  new  constitutions  of  the  States  in 
question. 

The  bill  set  out  the  political  history  of  Mississippi  so  far  as 
related  to  its  having  become  one  of  the  United  States;  and  "that 
forever  after  it  was  impossible  for  her  people,  or  for  the  State  in 
its  corporate  capacity,  to  dissolve  that  connection  with  the  other 
States,  and  that  any  attempt  to  do  so  by  secession  or  otherwise  was 
a  nullity;  "  and  she  "  now  solemnly  asserted  that  her  connection 
with  the  federal  government  was  not  in  any  wise  thereby  destroyed 
or  impaired;  "  and  she  averred  and  charged  "  that  the  Congress 
of  the  United  States  cannot  constitutionally  expel  her  from  the 
Union,  and  that  any  attempt  which  practically  does  so  is  a  nullity." 

The  bill  then  went  on :  — 

"  The  acts  in  question  annihilate  the  State  and  its  government, 
by  assuming  for  Congress  the  power  to  control,  modify,  and  even 
abolish  its  government  —  in  short,  to  exert  sovereign  power  over 
it  —  and  the  utter  destruction  of  the  State  must  be  the  consequence 
of  their  execution.  They  also  violate  a  well  known  salutary 
principle  in  governments,  the  observance  of  which  can  alone 
preserve  them,  by  making  the  civil  power  subordinate  to  the 
military  power,  and  thus  establish  a  military  rule  over  the  States 
enumerated  in  the  act,  and  make  a  precedent  by  which  the  govern- 
ment of  the  United  States  may  be  converted  into  a  military  des- 
potism, in  which  every  man  may  be  deprived  of  his  goods,  lands, 
hberty,  and  life,  by  the  breath  of  a  military  commander,  or  the 
sentence  of  the  military  commission  or  tribunal,  without  the 


68  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

benefit  of  trial  by  jury,  and  without  the  observance  of  any  of  those 
requirements  and  guarantees  by  which  the  Constitution  and  laws 
so  plainly  protect  and  guard  the  rights  of  the  citizen.  And  the 
more  effectually  to  accomplish  this  purpose  the  said  acts  divide 
the  ten  southern  States  into  five  military  districts,  and  make  it 
the  duty  of  the  President  to  assign  an  officer  to  the  command  of 
each  district,  and  to  place  a  sufficient  force  under  him,  whose  will 
is  to  be  the  law  and  his  soldiers  the  power  that  executes  it.  It  is 
declared  to  be  his  duty  to  protect  all  persons  in  their  rights  of 
person  and  property;  to  suppress  insurrections,  disorder,  and 
violence;  and  to  punish,  or  cause  to  be  punished,  all  disturbers 
of  the  peace  and  criminals;  and  he  may  organize  military  com- 
missions and  tribunals  to  try  offenders  when  he  may  think  proper. 
But,  by  what  rule  or  law  is  he  to  judge  of  the  rights  of  person  or 
property  ?  By  what  rule  or  law  is  he  to  arrest,  try,  and  punish 
criminals  ?  By  what  rule  or  law  is  he  to  judge  whether  they 
have  committed  crimes  ?  The  answer  to  these  questions  is  plain, 
—  by  his  own  will;  for,  though  he  may  adopt  the  State  authori- 
ties as  his  instruments  if  he  will,  yet  he  may  reject  them  if  he  will. 
A  scope  of  power  so  broad,  so  comprehensive,  was  never  before 
vested  in  a  military  commander  in  any  government  which  guards 
the  rights  of  its  citizens  or  subj  ects  by  law.  It  embraces  necessarily 
all  those  subjects  over  which  the  States  reserved  the  power  to 
legislate  for  themselves,  as  essential  to  their  existence  as  States, 
including  the  domestic  relations,  all  the  rights  of  property,  real 
and  personal;  the  rights  of  personal  security  and  personal  liberty; 
and  assumes  the  right  to  control  the  whole  of  the  domestic  con- 
cerns of  the  State.  These  acts  also  provide  that  the  governments 
now  existing  in  the  southern  States  are  but  provisional  govern- 
ments, subject  to  the  paramount  authority  of  Congress,  which 
may  at  any  time  abolish,  modify,  control,  or  supersede  them." 

It  then  charged  that,  from  information  and  belief,  the  said 
Andrew  Johnson,  President,  in  violation  of  the  Constitution, 
and  in  violation  of  the  sacred  rights  of  the  States,  would  proceed, 
notwithstanding  his  vetoes,  and  as  a  mere  ministerial  duty,  to  the 
execution  of  said  acts,  as  though  they  were  the  law  of  the  land, 
which  the  vetoes  prove  he  would  not  do  if  he  had  any  discretion, 
or  that  in  doing  so,  he  performed  anything  more  than  a  mere 
ministerial  duty;  and  that  with  the  view  to  the  execution  of  said 
acts  he  had  assigned  General  E.  O.  C.  Ord  to  the  command  of  the 
States  of  Mississippi  and  Arkansas. 


MISSISSIPPI   V.   JOHNSON.  69 

Upon  an  intimation  made  a  few  days  before  by  Mr.  Sharkey, 
of  his  desire  to  file  the  bill,  the  Attorney  General  objected  to  it 
in  limine,  as  containing  matter  not  fit  to  be  received.  The  Chief 
Justice  then  stated  that  while,  as  a  general  thing,  a  motion  to  file 
a  bill  was  granted  as  of  course,  yet  if  it  was  suggested  that  the 
bill  contained  scandalous  or  impertinent  matter,  or  was  in  other 
respects  improper  to  be  received,  the  court  would  either  examine 
the  bill  or  refer  it  to  a  master  for  examination.  The  only  matter, 
therefore,  which  would  now  be  considered  was  the  question  of 
leave  to  file  the  bill. 

Sharkey,  R.  J.  Walker,  and  Garland,  by  briefs  filed,  for  the 
motion.     Stanhery,  A.  G.,  contra. 

Chase,  C.  J.,  dehvered  the  opinion  of  the  court. 

A  motion  was  made,  some  days  since,  in  behalf  of  the  State  of 
Mississippi,  for  leave  to  file  a  bill  in  the  name  of  the  State,  praying 
this  court  perpetually  to  enjoin  and  restrain  Andrew  Johnson, 
President  of  the  United  States,  and  E.  O.  C.  Ord,  general  com- 
manding in  the  District  of  Mississippi  and  Arkansas,  from  execut- 
ing, or  in  any  manner  carrying  out,  certain  acts  of  Congress  therein 
named. 

The  acts  referred  to  are  those  of  March  2d  and  March  23d,  1867, 
commonly  known  as  the  Reconstruction  Acts. 

The  Attorney  General  objected  to  the  leave  asked  for,  upon 
the  ground  that  no  bill  which  makes  a  President  a  defendant, 
and  seeks  an  injunction  against  him  to  restrain  the  performance 
of  his  duties  as  President,  should  be  allowed  to  be  filed  in  this 
court. 

This  point  has  been  fully  argued,  and  we  will  now  dispose  of  it. 

We  shall  limit  our  inquiry  to  the  question  presented  by  the 
objection,  without  expressing  any  opinion  on  the  broader  issues 
discussed  in  argument,  whether,  in  any  case,  the  President  of  the 
United  States  may  be  required,  by  the  process  of  this  court,  to 
perform  a  purely  ministerial  act  under  a  positive  law,  or  may  be 
held  amenable,  in  any  case,  otherwise  than  by  impeachment  for 
crime. 

The  single  point  which  requires  consideration  is  this:  Can  the 
President  be  restrained  by  injunction  from  carrying  into  effect 
an  act  of  Congress  alleged  to  be  unconstitutional  ? 

It  is  assumed  by  the  counsel  for  the  State  of  Mississippi,  that 
the  President,  in  the  execution  of  the  Reconstruction  Acts,  is 
required  to  perform  a  mere  ministerial  duty.  In  this  assumption 
there  is,  we  think,  a  confounding  of  the  terms  ministerial  and 
executive,  which  are  by  no  means  equivalent  in  import. 


70  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

A  ministerial  duty,  the  performance  of  which  may,  in  proper 
cases,  be  required  of  the  head  of  a  department,  by  judicial  proc- 
ess, is  one  in  respect  to  which  nothing  is  left  to  discretion.  It  is 
a  simple,  definite  duty,  arising  under  conditions  admitted  or  proved 
to  exist,  and  imposed  by  law.  .  .  .^ 

Very  different  is  the  duty  of  the  President  in  the  exercise  of  the 
power  to  see  that  the  laws  are  faithfully  executed,  and  among 
these  laws  the  acts  named  in  the  bill.  By  the  first  of  these  acts 
he  is  required  to  assign  generals  to  command  in  the  several  military 
districts,  and  to  detail  sufficient  military  force  to  enable  such 
officers  to  discharge  their  duties  under  the  law.  By  the  supple- 
mentary act,  other  duties  are  imposed  on  the  several  command- 
ing generals,  and  these  duties  must  necessarily  be  performed  under 
the  supervision  of  the  President  as  commander-in-chief.  The 
duty  thus  imposed  on  the  President  is  in  no  just  sense  ministerial. 
It  is  purely  executive  and  political. 

An  attempt  on  the  part  of  the  judicial  department  of  the  gov- 
ernment to  enforce  the  performance  of  such  duties  by  the  President 
might  be  justly  characterized,  in  the  language  of  Chief  Justice 
Marshall,  as  "  an  absurd  and  excessive  extravagance." 

It  is  true  that  in  the  instance  before  us  the  interposition  of  the 
court  is  not  sought  to  enforce  action  by  the  Executive  under  con- 
stitutional legislation,  but  to  restrain  such  action  under  legisla- 
tion alleged  to  be  unconstitutional.  But  we  are  unable  to  perceive 
that  this  circumstance  takes  the  case  out  of  the  general  principles 
which  forbid  judicial  interference  with  the  exercise  of  Executive 
discretion. 

It  was  admitted  in  the  argument  that  the  application  now 
made  to  us  is  without  a  precedent;  and  this  is  of  much  weight 
against  it.  .  .  . 

The  fact  that  no  such  application  was  ever  before  made  in  any 
case  indicates  the  general  judgment  of  the  profession  that  no  such 
application  should  be  entertained. 

It  will  hardly  be  contended  that  [the  court]  ^  can  interpose,  in  any 
case,  to  restrain  the  enactment  of  an  unconstitutional  law;  and 
yet  how  can  the  right  to  judicial  interposition  to  prevent  such  an 
enactment,  when  the  purpose  is  evident  and  the  execution  of  that 
purpose  certain,  be  distinguished,  in  principle,  from  the  right  to 

1  Here  were  cited  Marbury  v.  Madison,  ante,  p.  23  (1803),  and  Kendall  v. 
Stockton,  ante,  p.  42  (1838).  —  Ed. 

^  The  original  report  erroneously  says  "  Congress."  —  Ed. 


MISSISSIPPI   V.   JOHNSON.  71 

such  interposition  against  the  execution  of  such  a  law  by  the 
President  ? 

The  Congress  is  the  legislative  department  of  the  government; 
the  President  is  the  executive  department.  Neither  can  be 
restrained  in  its  action  by  the  judicial  department;  though  the 
acts  of  both,  when  performed,  are,  in  proper  cases,  subject  to  its 
cognizance. 

The  impropriety  of  such  interference  will  be  clearly  seen  upon 
consideration  of  its  possible  consequences. 

Suppose  the  bill  filed  and  the  injunction  prayed  for  allowed. 
If  the  President  refuse  obedience,  it  is  needless  to  observe  that 
the  court  is  without  power  to  enforce  its  process.  If,  on  the  other 
hand,  the  President  complies  with  the  order  of  the  court  and  re- 
fuses to  execute  the  acts  of  Congress,  is  it  not  clear  that  a  collision 
may  occur  between  the  executive  and  legislative  departments  of 
the  government  ?  May  not  the  House  of  Representatives  im- 
peach the  President  for  such  refusal  ?  And  in  that  case  could  this 
court  interfere,  in  behalf  of  the  President,  thus  endangered  by 
compliance  with  its  mandate,  and  restrain  by  injunction  the  Senate 
of  the  United  States  from  sitting  as  a  court  of  impeachment  ? 
Would  the  strange  spectacle  be  offered  to  the  pubhc  world  of  an 
attempt  by  this  court  to  arrest  proceedings  in  that  court  ? 

These  questions  answer  themselves.  .  .  . 

It  has  been  suggested  that  the  bill  contains  a  prayer  that,  if 
the  relief  sought  cannot  be  had  against  Andrew  Johnson,  as  Presi- 
dent, it  may  be  granted  against  Andrew  Johnson  as  a  citizen  of 
Tennessee.  But  it  is  plain  that  relief  as  against  the  execution  of 
an  act  of  Congress  by  Andrew  Johnson  is  relief  against  its  execu- 
tion by  the  President.  A  bill  praying  an  injunction  against  the 
execution  of  an  act  of  Congress  by  the  incumbent  of  the  presiden- 
tial office  cannot  be  received,  whether  it  describes  him  as  Presi- 
dent or  as  a  citizen  of  a  State. 

The  motion  for  leave  to  file  the  bill  is,  therefore, 

Denied.^ 

^  In  Georgia  v.  Stanton,  6  Wall.  50  (1867),  Georgia  invoked  the  original 
jurisdiction  of  the  Supreme  Court  of  the  United  States  against  the  Secre- 
tary of  War,  the  General  of  the  Army,  and  the  Major  General  assigned 
to  the  Third  Military  District,  comprising  Georgia,  Florida,  and  Alabama, 
to  restrain  the  defendants  from  executing  the  same  Reconstruction  Acts. 

The  bill  was  dismissed  for  want  of  jurisdiction,  Nelson,  J.,  for  the  court, 
saying: — 

"  That  these  matters,  both  as  stated  in  the  body  of  the  bill,  and  in  the 
prayers  for  reUef,  call  for  the  judgment  of  the  court  upon  pohtical  questions, 


72  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

KILBOURN  V.   THOMPSON. 
Supreme  Court  of  the  United  States.     1880. 

[103  United  States,  168.]  > 

Error  to  the  Supreme  Court  of  the  District  of  Columbia. 

This  was  an  action  for  false  imprisonment,  brought  against  the 
Sergeant-at-arms  of  the  House  of  Representatives,  the  Speaker, 
and  members  of  a  special  committee  which  a  resolution  of  the 
House  had  instructed  to  inquire  into  the  history  of  a  certain  real 
estate  pool.  The  preamble  of  the  resolution  recited  that  the 
firm  of  Jay  Cooke  &  Co.  was  indebted  to  the  United  States  and  had 
been  adjudged  bankrupt  by  the  United  States  District  Court  for 
the  Eastern  District  of  Pennsylvania,  that  the  firm  had  been 
interested  in  the  pool,  that  the  trustee  in  bankruptcy  had  made 
a  settlement  of  that  interest,  that  the  settlement  was  apparently 

and  upon  rights,  not  of  persons  or  property,  but  of  a  political  character,  wiU 
hardly  be  denied.  For  the  rights  for  the  protection  of  which  our  authority 
is  invoked  are  the  rights  of  sovereignty,  of  pohtical  jurisdiction,  of  govern- 
ment, of  corporate  existence  as  a  State,  with  all  its  constitutional  powers  and 
privileges.  No  case  of  private  rights  or  private  property  infringed,  or  in 
danger  of  actual  or  threatened  infringement,  is  presented  by  the  bill,  in  a 
judicial  form,  for  the  judgment  of  the  court. 

"  It  is  true,  the  bill,  in  setting  forth  the  pohtical  rights  of  the  State,  and  of 
its  people,  to  be  protected,  among  other  matters,  avers,  that  Georgia  owns 
certain  real  estate  and  buildings  therein,  State  capitol,  and  executive  mansion, 
and  other  real  and  personal  property;  and  that  putting  the  acts  of  Congress 
into  execution,  and  destroying  the  State,  would  deprive  it  of  the  possession 
and  enjoyment  of  its  property.  But  it  is  apparent  that  this  reference  to 
property  and  statement  concerning  it  are  only  by  way  of  showing  one  of  the 
grievances  resulting  from  the  threatened  destruction  of  the  State,  and  in 
aggravation  of  it,  not  as  a  specific  ground  of  relief.  This  matter  of  property 
is  neither  stated  as  an  independent  ground,  nor  is  it  noticed  at  all  in  the  prayers 
for  relief.  Indeed  the  case,  as  made  in  the  bill,  would  have  stopped  far  short 
of  the  relief  sought  by  the  State,  and  its  main  purpose  and  design  given  up, 
by  restraining  its  remedial  effect,  simply  to  the  protection  of  the  title  and 
possession  of  its  property.  Such  relief  would  have  called  for  a  very  different 
bill  from  the  one  before  us. 

"  Having  arrived  at  the  conclusion  that  this  court,  for  the  reasons  above 
stated,  possesses  no  jurisdiction  over  the  subject-matter  presented  in  the  bill 
for  relief,  it  is  unimportant  to  examine  the  question  as  it  respects  jurisdiction 
over  the  parties  defendants." 

And  Chase,  C.  J.,  said:  "  Without  being  able  to  yield  my  assent  to  the 
grounds  stated  in  the  opinion  just  read  for  the  dismissal  of  the  complainant's 
bill,  I  concur  fully  in  the  conclusion  that  the  case  made  by  the  bill  is  one  of 
which  this  court  has  no  jurisdiction."  —  Ed. 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


KILBOUBN   V.   THOMPSON.  73 

disadvantageous  to  the  creditors,  and  that  the  courts  were  now- 
powerless  to  afford  relief.  The  committee  caused  to  be  issued  by 
the  Speaker  a  subpoena  duces  tecum  to  the  plaintiff,  and  upon  the 
plaintiff's  appearing  as  a  witness  and  refusing  to  answer  a  certain 
question  and  to  produce  certain  papers,  the  question  and  the  papers 
being  pertinent  to  the  inquiry,  the  committee  reported  to  the 
House  that  he  was  guilty  of  a  contempt.  Thereupon  the  House 
resolved  —  the  defendant  committee-men  voting  for  the  resolu- 
tion —  that  the  Speaker  issue  his  warrant  directing  the  Sergeant- 
at-arms  to  take  the  plaintiff  into  custody  and  to  bring  him  to  the 
bar  of  the  House  to  answer  why  he  should  not  be  punished.  The 
warrant  was  issued ;  and  then  the  plaintiff,  having  been  arrested 
by  the  Sergeant-at-arms  and  conveyed  to  the  bar  of  the  House, 
still  refused  to  answer  the  question  and  also  to  produce  the 
papers.  Thereupon  it  was  resolved  by  the  House  —  the  defend- 
ant committee-men  voting  for  the  resolution  —  that  the  plaintiff 
was  in  contempt  and  that  until  he  should  purge  himself  of  his 
contempt  by  obeying  the  subpoena  duces  tecum  and  answering  the 
question  he  should  be  kept  by  the  Sergeant-at-arms  in  the  com- 
mon jail  of  the  District  of  Columbia.  Thereupon  the  Speaker 
issued  a  warrant  in  accordance  with  the  resolution,  and  the  Ser- 
geant-at-arms kept  the  plaintiff  in  custody  in  accordance  with  its 
terms  until  the  Sergeant-at-arms,  in  response  to  a  writ  of  habeas 
corpus  issued  by  order  of  the  Chief  Justice  of  the  Supreme  Court 
of  the  District  of  Columbia,  delivered  the  plaintiff  to  the  Marshal 
for  the  District  of  Columbia.  Congress  was  in  session  throughout 
the  whole  time.  The  false  imprisonment  alleged  in  the  present 
action  was  that  the  defendants  took  the  plaintiff  from  his  house 
and  confined  him  in  the  common  jail  for  forty-five  days.  The 
Speaker  died  before  process  was  served.  The  Sergeant-at-arms 
and  the  other  defendants  pleaded  the  general  issue  and  also  spe- 
cial pleas  setting  forth  the  facts.  The  plaintiff  demurred  to  the 
special  pleas;  and,  the  demurrer  having  been  overruled  and  judg- 
ment rendered  for  the  defendants,  the  plaintiff  sued  out  this  writ 
of  error. 

Charles  A.  Eldredge,  Enoch  Totten,  and  Noah  L.  Jeffries,  for 
plaintiff  in  error.     Walter  H.  Smith  and  Frank  H.  Hurd,  contra. 

Miller,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

The  powers  of  Congress  itself,  when  acting  through  the  concur- 
rence of  both  branches,  are  dependent  solely  on  the  Constitution. 
Such  as  are  not  conferred  by  that  instrument,  either  expressly 
or  by  fair  implication  from  what  is  granted,  are  "  reserved  to 


74  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

the  States  respectively,  or  to  the  people."  Of  course,  neither 
branch  of  Congress,  when  acting  separately,  can  lawfully  exercise 
more  power  than  is  conferred  by  the  Constitution  on  the  whole 
body,  except  in  the  few  instances  where  authority  is  conferred 
on  either  House  separately,  as  in  the  case  of  impeachments.  No 
general  power  of  inflicting  punishment  by  the  Congress  of  the 
United  States  is  found  in  that  instrument.  It  contains  in  the  pro- 
vision that  no  "person  shall  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law,"  the  strongest  implication  against  pun- 
ishment by  order  of  the  legislative  body.  .  .  .  That  instrument, 
however,  is  not  wholly  silent  as  to  the  authority  of  the  separate 
branches  of  Congress  to  inflict  punishment.  It  authorizes  each 
House  to  punish  its  own  members.  By  the  second  clause  of  the 
fifth  section  of  the  first  article,  "  Each  House  may  determine 
the  rules  of  its  proceedings,  punish  its  members  for  disorderly 
behavior,  and,  with  the  concurrence  of  two-thirds,  expel  a  mem- 
ber," and,  by  the  clause  immediately  preceding,  it  "  may  be 
authorized  to  compel  the  attendance  of  absent  members,  in  such 
manner  and  under  such  penalties  as  each  House  may  provide." 
These  provisions  are  equally  instructive  in  what  they  authorize 
and  in  what  they  do  not  authorize.  There  is  no  express  power 
in  that  instrument  conferred  on  either  House  of  Congress  to  punish 
for  contempts. 

The  advocates  of  this  power  have,  therefore,  resorted  to  an 
implication  of  its  existence,  founded  on  two  principal  arguments. 
These  are,  1,  its  exercise  by  the  House  of  Commons  of  England, 
from  which  country  we,  it  is  said,  have  derived  our  system  of 
parliamentary  law;  and,  2d,  the  necessity  of  such  a  power  to 
enable  the  two  Houses  of  Congress  to  perform  the  duties  and 
exercise  the  powers  which  the  Constitution  has  conferred  on 
them.  .  .  . 

It  is  important,  however,  to  understand  on  what  principle  this 
power  in  the  House  of  Commons  rests,  that  we  may  see  whether 
it  is  apphcable  to  the  two  Houses  of  Congress,  and,  if  it  be,  whether 
there  are  limitations  to  its  exercise. 

While  there  is,  in  the  adjudged  cases  in  the  Enghsh  courts, 
httle  agreement  of  opinion  as  to  the  extent  of  this  power,  and  the 
hability  of  its  exercise  to  be  inquired  into  by  the  courts,  there  is 
no  difference  of  opinion  as  to  its  origin.  This  goes  back  to  the 
period  when  the  bishops,  the  lords,  and  the  knights  and  burgesses 
met  in  one  body,  and  were,  when  so  assembled,  called  the  High 
Court  of  Parliament. 


KILBOURN   V.    THOMPSON.  75 

They  were  not  only  called  so,  but  the  assembled  Parliament 
exercised  the  highest  functions  of  a  court  of  judicature,  repre- 
senting in  that  respect  the  judicial  authority  of  the  king  in  his 
Court  of  Parliament.  While  this  body  enacted  laws,  it  also 
rendered  judgments  in  matters  of  private  right,  which,  when 
approved  by  the  king,  were  recognized  as  valid.  .  .  . 

It  is  upon  this  idea  that  the  two  Houses  of  Parliament  were 
each  courts  of  judicature  originally,  which,  though  divested  by 
usage,  and  by  statute,  probably,  of  many  of  their  judicial  func- 
tions, have  yet  retained  so  much  of  that  power  as  enables  them, 
like  any  other  court,  to  punish  for  a  contempt  of  these  privileges 
and  authority  that  the  power  rests.  .  .  . 

We  are  of  opinion  that  the  right  of  the  House  of  Representatives 
to  punish  the  citizen  for  a  contempt  of  its  authority  or  a  breach 
of  its  privileges  can  derive  no  support  from  the  precedents  and 
practices  of  the  two  Houses  of  the  English  Parliament,  nor  from 
the  adjudged  cases  in  which  the  English  courts  have  upheld  these 
practices.  Nor,  taking  what  has  fallen  from  the  English  judges, 
and  especially  the  later  cases  on  which  we  have  just  commented, 
is  much  aid  given  to  the  doctrine  that  this  power  exists  as  one 
necessary  to  enable  either  House  of  Congress  to  exercise  success- 
fully their  function  of  legislation. 

This  latter  proposition  is  one  which  we  do  not  propose  to  decide 
in  the  present  case,  because  we  are  able  to  decide  it  without  passing 
upon  the  existence  or  non-existence  of  such  a  power  in  aid  of  the 
legislative  function. 

As  we  have  already  said,  the  Constitution  expressly  empowers 
each  House  to  punish  its  own  members  for  disorderly  behavior. 
We  see  no  reason  to  doubt  that  this  punishment  may  in  a  proper 
case  be  imprisonment,  and  that  it  may  be  for  refusal  to  obey  some 
rule  on  that  subject  made  by  the  House  for  the  preservation  of 
order. 

So,  also,  the  penalty  which  each  House  is  authorized  to  inflict 
in  order  to  compel  the  attendance  of  absent  members  may  be 
imprisonment,  and  this  may  be  for  a  violation  of  some  order  or 
standing  rule  on  that  subject. 

Each  House  is  by  the  Constitution  made  the  judge  of  the  elec- 
tion and  qualification  of  its  members.  In  deciding  on  these  it 
has  an  undoubted  right  to  examine  witnesses  and  inspect  papers, 
subject  to  the  usual  rights  of  witnesses  in  such  cases;  and  it  may 
be  that  a  witness  would  be  subject  to  like  punishment  at  the  hands 
of  the  body  engaged  in  trying  a  contested  election,  for  refusing 


76  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

to  testify,  that  he  would  if  the  case  were  pending  before  a  court 
of  judicature. 

The  House  of  Representatives  has  the  sole  right  to  impeach 
officers  of  the  government,  and  the  Senate  to  try  them.  Where 
the  question  of  such  impeachment  is  before  either  body  acting 
in  its  appropriate  sphere  on  that  subject,  we  see  no  reason  to 
doubt  the  right  to  compel  the  attendance  of  witnesses,  and  their 
answer  to  proper  questions,  in  the  same  manner  and  by  the  use 
of  the  same  means  that  courts  of  justice  can  in  like  cases. 

Whether  the  power  of  punishment  in  either  House  by  fine  or 
imprisonment  goes  beyond  this  or  not,  we  are  sure  that  no  person 
can  be  punished  for  contumacy  as  a  witness  before  either  House, 
unless  his  testimony  is  required  in  a  matter  into  which  that  House 
has  jurisdiction  to  inquire,  and  we  feel  equally  sure  that  neither 
of  these  bodies  possesses  the  general  power  of  making  inquiry 
into  the  private  affairs  of  the  citizen. 

It  is  believed  to  be  one  of  the  chief  merits  of  the  American 
system  of  written  constitutional  law,  that  all  the  powers  intrusted 
to  government,  whether  State  or  national,  are  divided  into  the 
three  grand  departments,  the  executive,  the  legislative,  and  the 
judicial.  That  the  functions  appropriate  to  each  of  these  branches 
of  government  shall  be  vested  in  a  separate  body  of  public  ser- 
vants, and  that  the  perfection  of  the  system  requires  that  the 
lines  which  separate  and  divide  these  departments  shall  be  broadly 
and  clearly  defined.  It  is  also  essential  to  the  successful  working 
of  this  system  that  the  persons  intrusted  with  power  in  any  one 
of  these  branches  shall  not  be  permitted  to  encroach  upon  the 
powers  confided  to  the  others,  but  that  each  shall  by  the  law  of 
its  creation  be  limited  to  the  exercise  of  the  powers  appropriate 
to  its  own  department  and  no  other.  To  these  general  proposi- 
tions there  are  in  the  Constitution  of  the  United  States  some 
important  exceptions.  One  of  these  is,  that  the  President  is 
so  far  made  a  part  of  the  legislative  power,  that  his  assent  is 
required  to  the  enactment  of  all  statutes  and  resolutions  of 
Congress. 

This,  however,  is  so  only  to  a  limited  extent,  for  a  bill  may 
become  a  law  notwithstanding  the  refusal  of  the  President  to 
approve  it,  by  a  vote  of  two-thirds  of  each  House  of  Congress. 

So,  also,  the  Senate  is  made  a  partaker  in  the  functions  of 
appointing  officers  and  making  treaties,  which  are  supposed  to 
be  properly  executive,  by  requiring  its  consent  to  the  appoint- 
ment of  such  officers  and  the  ratification  of  treaties.     The  Senate 


KILBOURN    V.    THOMPSON.  77 

also  exercises  the  judicial  power  of  trying  impeachments,  and  the 
House  of  preferring  articles  of  impeachment. 

In  the  main,  however,  that  instrument,  the  model  on  which 
are  constructed  the  fundamental  laws  of  the  States,  has  blocked 
out  with  singular  precision,  and  in  bold  lines,  in  its  three  primary 
articles,  the  allotment  of  power  to  the  executive,  the  legislative, 
and  the  judicial  departments  of  the  government.  It  also  remains 
true,  as  a  general  rule,  that  the  powers  confided  by  the  Constitu- 
tion to  one  of  these  departments  cannot  be  exercised  by  another. 

It  may  be  said  that  these  are  truisms  which  need  no  repetition 
here  to  give  them  force.  But  while  the  experience  of  almost  a 
century  has,  in  general,  shown  a  wise  and  commendable  forbearance 
in  each  of  these  branches  from  encroachments  upon  the  others, 
it  is  not  to  be  denied  that  such  attempts  have  been  made,  and  it  is 
believed  not  always  without  success.  The  increase  in  the  number 
of  States,  in  their  population  and  wealth,  and  in  the  amount  of 
power,  if  not  in  its  nature  to  be  exercised  by  the  federal  govern- 
ment, presents  powerful  and  growing  temptations  to  those  to 
whom  that  exercise  is  intrusted,  to  overstep  the  just  boundaries 
of  their  own  department,  and  enter  upon  the  domain  of  one  of 
the  others,  or  to  assume  powers  not  intrusted  to  either  of  them. 

The  House  of  Representatives  having  the  exclusive  right  to 
originate  all  bills  for  raising  revenue,  whether  by  taxation  or 
otherwise;  having  with  the  Senate  the  right  to  declare  war,  and 
fix  the  compensation  of  all  officers  and  servants  of  the  government, 
and  vote  the  supplies  which  must  pay  that  compensation;  and 
being  also  the  most  numerous  body  of  all  those  engaged  in  the 
exercise  of  the  primary  powers  of  the  government,  —  is  for  these 
reasons  least  of  all  liable  to  encroachments  upon  its  appropriate 
domain. 

By  reason,  also,  of  its  popular  origin,  and  the  frequency  with 
which  the  short  term  of  office  of  its  members  requires  the  renewal 
of  their  authority  at  the  hands  of  the  people,  —  the  great  source 
of  all  power  in  this  country,  —  encroachments  by  that  body  on 
the  domain  of  co-ordinate  branches  of  the  government  -would  be 
received  with  less  distrust  than  a  similar  exercise  of  unwarranted 
power  by  any  other  department  of  the  government.  It  is  all 
the  more  necessary,  therefore,  that  the  exercise  of  power  by  this 
body,  when  acting  separately  from  and  independently  of  all 
other  depositaries  of  power,  should  be  watched  with  vigilance, 
and  when  called  in  question  before  any  other  tribunal  having  the 
right  to  pass  upon  it  that  it  should  receive  the  most  careful  scrutiny. 


78  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

In  looking  to  the  preamble  and  resolution  under  which  the 
committee  acted,  before  which  Kilbourn  refused  to  testify,  we  are 
of  opinion  that  the  House  of  Representatives  not  only  exceeded 
the  limit  of  its  own  authority,  but  assumed  a  power  which  could 
only  be  properly  exercised  by  another  branch  of  the  government, 
because  it  was  in  its  nature  clearly  judicial. 

The  Constitution  declares  that  the  judicial  power  of  the  United 
States  shall  be  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may  from  time  to  time  ordain  and  estab- 
lish. If  what  we  have  said  of  the  division  of  the  powers  of  the 
government  among  the  three  departments  be  sound,  this  is  equiv- 
alent to  a  declaration  that  no  judicial  power  is  vested  in  the  Con- 
gress or  either  branch  of  it,  save  in  the  cases  specifically  enumerated 
to  which  we  have  referred.  If  the  investigation  which  the  com- 
mittee was  directed  to  make  was  judicial  in  its  character,  and  could 
only  be  properly  and  successfully  made  by  a  court  of  justice,  and 
if  it  related  to  a  matter  wherein  relief  or  redress  could  be  had  only 
by  a  judicial  proceeding,  we  do  not,  after  what  has  been  said, 
deem  it  necessary  to  discuss  the  proposition  that  the  power 
attempted  to  be  exercised  was  one  confided  by  the  Constitution 
to  the  judicial  and  not  to  the  legislative  department  of  the  govern- 
ment. We  think  it  equally  clear  that  the  power  asserted  is  judicial 
and  not  legislative. 

The  preamble  to  the  resolution  recites  that  the  government 
of  the  United  States  is  a  creditor  of  Jay  Cooke  &  Co.,  then  in 
bankruptcy  in  the  District  Court  of  the  United  States  for  the 
Eastern  District  of  Pennsylvania. 

If  the  United  States  is  a  creditor  of  any  citizen,  or  of  any  one 
else  on  whom  process  can  be  served,  the  usual,  the  only  legal 
mode  "of  enforcing  payment  of  the  debt  is  by  a  resort  to  a  court 
of  justice.  For  this  purpose,  among  others.  Congress  has  created 
courts  of  the  United  States,  and  officers  have  been  appointed  to 
prosecute  the  pleas  of  the  government  in  these  courts.  .  .  . 

The  resolution  adopted  as  a  sequence  of  this  preamble  contains 
no  hint  of  any  intention  of  final  action  by  Congress  on  the  subject. 
In  all  the  argument  of  the  case  no  suggestion  has  been  made  of 
what  the  House  of  Representatives  or  the  Congress  could  have 
done  in  the  way  of  remedying  the  wrong  or  securing  the  creditors 
of  Jay  Cooke  &  Co.,  or  even  the  United  States.  Was  it  to  be 
simply  a  fruitless  investigation  into  the  personal  affairs  of  in- 
dividuals ?  If  so,  the  House  of  Representatives  had  no  power  or 
authority  in  the  matter  more  than  any  other  equal  number  of 


KILBOURN   V.    THOMPSON.  79 

gentlemen  interested  for  the  government  of  their  country.  By 
**  fruitless  "  we  mean  that  it  could  result  in  no  valid  legislation 
on  the  subject  to  which  the  inquiry  referred. 

What  was  this  committee  to  do  ? 

To  inquire  into  the  nature  and  history  of  the  real  estate  pool. 
How  indefinite!  What  was  the  real  estate  pool  ?  Is  it  charged 
with  any  crime  or  offence  ?  If  so,  the  courts  alone  can  punish 
the  members  of  it.  Is  it  charged  with  a  fraud  against  the  gov- 
ernment ?  Here,  again,  the  courts,  and  they  alone,  can  afford 
a  remedy.  .  .  . 

We  are  of  opinion,  for  these  reasons,  that  the  resolution  of  the 
House  of  Representatives  authorizing  the  investigation  was  in 
excess  of  the  power  conferred  on  that  body  by  the  constitution; 
that  the  committee,  therefore,  had  no  lawful  authority  to  require 
Kilbourn  to  testify  as  a  witness  beyond  what  he  voluntarily 
chose  to  tell;  that  the  orders  and  resolutions  of  the  House, 
and  the  warrant  of  the  speaker,  under  which  Kilbourn  was  im- 
prisoned, are,  in  like  manner,  void  for  want  of  jurisdiction  in 
that  body,  and  that  his  imprisonment  was  without  any  lawful 
authority.  .  .  . 

It  remains  to  consider  the  matter  special  to  the  other  defend- 
ants set  out  in  their  plea,  which  claims  the  protection  due  to  their 
character  as  members  of  the  House  of  Representatives.  In  sup- 
port of  this  defence  they  allege  that  they  did  not  in  any  manner 
assist  in  the  arrest  of  Kilbourn  or  his  imprisonment,  nor  did  they 
order  or  direct  the  same,  except  by  their  votes  and  by  their  partic- 
ipation as  members  in  the  introduction  of,  and  assent  to,  the 
official  acts  and  proceedings  of  the  House,  which  they  did  and 
performed  as  members  of  the  House,  in  the  due  discharge  of  their 
duties,  and  not  otherwise. 

As  these  defendants  did  not  make  the  actual  assault  on  the 
plaintiff,  nor  personally  assist  in  arresting  or  confining  him,  they 
can  only  be  held  liable  on  the  charge  made  against  them  as  persons 
who  had  ordered  or  directed  in  the  matter,  so  as  to  become  respon- 
sible for  the  acts  which  they  directed.  .  .  . 

The  defendants  set  up  the  protection  of  the  Constitution,  under 
which  they  do  business  as  part  of  the  Congress  of  the  United 
States.  That  Constitution  declares  that  .  .  .  "for  any  speech 
or  debate  in  either  House  they  shall  not  be  questioned  in  any 
other  place." 

Is  what  the  defendants  did  in  the  matter  in  hand  covered  by 
this  provision  ?    Is  a  resolution  offered  by  a  member,  a  speech 


80  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS, 

or  debate,  within  the  meaning  of  the  clause  ?  Does  its  protection 
extend  to  the  report  which  they  made  to  the  House  of  Kilbourn's 
delinquency  ?  To  the  expression  of  opinion  that  he  was  in  con- 
tempt of  the  authority  of  the  House  ?  To  their  vote  in  favor  of 
the  resolution  under  which  he  was  imprisoned  ?  .  .  . 

We  may,  perhaps,  find  some  aid  in  ascertaining  the  meaning 
of  this  provision,  if  we  can  find  out  its  source,  and  fortunately  in 

this  there  is  no  difficulty The  freedom  from  arrest  and 

freedom  of  speech  in  the  two  Houses  of  Parliament  were  long 
subjects  of  contest  between  the  Tudor  and  Stuart  kings  and  the 
House  of  Commons,  When,  however,  the  revolution  of  1688 
expelled  the  last  of  the  Stuarts  and  introduced  a  new  dynasty, 
many  of  these  questions  were  settled  by  a  bill  of  rights,  formally 
declared  by  the  Parliament  and  assented  to  by  the  crown,  1  W.  & 
M,,  st,  2,  c.  2,  One  of  these  declarations  is  "  that  the  freedom  of 
speech,  and  debates,  and  proceedings  in  Parliament,  ought  not 
to  be  impeached  or  questioned  in  any  court  or  place  out  of  Parlia- 
ment." ,  ,  . 

It  would  be  a  narrow  view  of  the  constitutional  provision  to 
limit  it  to  words  spoken  in  debate.  The  reason  of  the  rule  is  as 
forcible  in  its  application  to  written  reports  presented  in  that 
body  by  its  committees,  to  resolutions  offered,  which,  though  in 
writing,  must  be  reproduced  in  speech,  and  to  the  act  of  voting, 
whether  it  is  done  vocally  or  by  passing  between  the  tellers.  In 
short,  to  things  generally  done  in  a  session  of  the  House  by  one 
of  its  members  in  relation  to  the  business  before  it. 

It  is  not  necessary  to  decide  here  that  there  may  not  be  things 
done,  in  the  one  House  or  the  other,  of  an  extraordinary  character, 
for  which  the  members  who  take  part  in  the  act  may  be  held  legally 
responsible.  If  we  could  suppose  the  members  of  these  bodies 
so  far  to  forget  their  high  functions  and  the  noble  instrument 
under  which  they  act  as  to  imitate  the  Long  Parliament  in  the 
execution  of  the  Chief  Magistrate  of  the  nation,  or  to  follow  the 
example  of  the  French  Assembly  in  assuming  the  function  of  a 
court  for  capital  punishment  we  are  not  prepared  to  say  that  such 
an  utter  perversion  of  their  powers  to  a  criminal  purpose  would  be 
screened  from  punishment  by  the  constitutional  provision  for 
freedom  of  debate.  In  this,  as  in  other  matters  which  have  been 
pressed  on  our  attention,  we  prefer  to  decide  only  what  is  necessary 
to  the  case  in  hand,  and  we  think  the  plea  set  up  by  those  of  the 
defendants  who  were  members  of  the  House  is  a  good  defence,  and 


KILBOURN   V.   THOMPSON.  81 

the  judgment  of  the  court  overruling  the  demurrer  to  it  and  giving 
judgment  for  those  defendants  will  be  affirmed.  As  to  Thompson, 
the  judgment  will  be  reversed  and  the  case  remanded  for  further 
proceedings. 

So  ordered} 

'  In  In  re  Chapman,  166  U.  S.  661  (1897),  on  habeas  corpus,  a  sentence  of 
imprisonment  by  the  Supreme  Court  of  the  District  of  Columbia  was  upheld 
under  a  federal  statute  to  the  effect  that  "  every  person  who,  having  been 
summoned  as  a  witness  by  the  authority  of  either  House  of  Congress,  to  give 
testimony  or  to  produce  papers  upon  any  matter  under  inquiry  before  either 
House,  or  any  committee  of  either  House  of  Congress,  wilfully  makes  default, 
or  who,  having  appeared,  refuses  to  answer  any  question  pertinent  to  the 
question  under  inquiry,  shall  be  deemed  guilty  of  a  misdemeanor,  punishable 
by  a  fine  of  not  more  than  one  thousand  dollars  nor  less  than  one  hundred 
dollars,  and  imprisonment  in  a  common  jail  for  not  less  than  one  month  nor 
more  than  twelve  months,"  and  that  on  the  request  of  the  presiding  officer  of 
the  proper  House,  it  shall  be  the  duty  of  the  District  Attorney  of  the  District 
of  Columbia  to  bring  the  matter  before  the  grand  jury.  Fuller,  C.  J.,  for 
the  court,  after  summarizing  Kilbourn  v.  Thompson,  supra,  said:  "The  case 
at  bar  is  wholly  different.  Specific  charges  publicly  made  against  Senators 
had  been  brought  to  the  attention  of  the  Senate,  and  the  Senate  had  deter- 
mined that  investigation  was  necessary.  The  subject-matter  as  affecting 
the  Senate  was  within  the  jurisdiction  of  the  Senate.  The  questions  were 
not  intrusions  into  the  affairs  of  the  citizen;  they  did  not  seek  to  ascertain 
any  facts  as  to  the  conduct,  methods,  extent,  or  details  of  the  firm  in  question, 
but  only  whether  that  firm,  confessedly  engaged  in  buying  and  selling  stocks, 
and  the  particular  stock  named,  was  employed  by  any  Senator  to  buy  or  sell 
for  him  any  of  that  stock,  whose  market  price  might  be  affected  by  the  Senate's 
action.  .  .  .  The  questions  were  undoubtedly  pertinent  to  the  subject-matter 
of  the  inquiry.  The  resolutions  directed  the  committee  to  inquire  '  whether 
any  Senator  has  been,  or  is,  speculating  in  what  are  known  as  sugar  stocks 
during  the  consideration  of  the  tariff  bill  now  before  the  Senate.'  What  the 
Senate  might  or  might  not  do  upon  the  facts  when  ascertained  we  caimot  say, 
nor  are  we  called  upon  to  inquire  whether  such  ventures  might  be  defensible, 
as  contended  in  argument,  but  it  is  plain  that  negative  answers  would  have 
cleared  that  body  of  what  the  Senate  regarded  as  offensive  imputations,  while 
affirmative  answers  might  have  led  to  further  action  on  the  part  of  the  Senate 
within  its  constitutional  powers."  —  Ed. 


82  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

AMERICAN  SCHOOL  OF  MAGNETIC  HEALING 
V.  McANNULTY. 

Supreme  Court  of  the  United  States.     1902. 
[187  United  States,  94.]  ^ 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Western  District  of  Missouri. 

This  was  an  appeal  from  a  decree  dismissing  on  its  merits  an 
amended  bill  praying  an  injunction  to  restrain  a  postmaster 
from  carrying  out  a  so-called  "  fraud  order  "  of  the  Postmaster 
General,  which  order  was  based  upon  Revised  Statutes,  sees. 
3929  and  4041,  and  upon  section  4  of  an  act  of  March  2,  1895,  and 
prohibited  the  deUvery  of  mail  matter  to  the  complainants.  The 
defendant  demurred  to  the  bill.  The  court  sustained  the  demurrer, 
and,  the  complainants  declining  to  plead  further,  dismissed  the 
amended  bill  at  complainants'  cost.  Thereupon  this  appeal  was 
taken. 

James  H.  Harkless,  for  appellants.  John  O'Grady  and  Charles 
S.  Crysler  were  with  him  on  the  brief.  Solicitor  General  Richards 
and  Special  Attorney  Robert  A.  Howard,  for  appellee. 

Peckham,  J.,  .  .  .  delivered  the  opinion  of  the  court 

First.  As  the  case  arises  on  demurrer,  all  material  facts  averred 
in  the  bill  are,  of  course,  admitted.  It  is,  therefore,  admitted  that 
the  business  of  the  complainants  is  founded  "  almost  exclusively 
on  the  physical  and  practical  proposition  that  the  mind  of  the 
human  race  is  largely  responsible  for  its  ills,  and  is  a  perceptible 
factor  in  the  treating,  curing,  benefiting  and  remedying  thereof, 
and  that  the  human  race  does  possess  the  innate  power,  through 
proper  exercise  of  the  faculty  of  the  brain  and  mind,  to  largely 
control  and  remedy  the  ills  that  humanity  is  heir  to,  and  (com- 
plainants) discard  and  eliminate  from  their  treatment  what  is 
commonly  known  as  divine  healing  and  Christian  science,  and 
they  are  confined  to  practical  scientific  treatment  emanating  from 
the  source  aforesaid." 

These  allegations  are  not  conclusions  of  law,  but  are  statements 
of  fact  upon  which,  as  averred,  the  business  of  the  complainants 
is  based,  and  the  question  is  whether  the  complainants,  who  are 
conducting  the  business  upon  the  basis  stated,  thereby  obtain 
money  and  property  through  the  mails  by  means  of  false  or  fraud- 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


AMERICAN  SCHOOL  V.   McANNULTY.  83 

ulent  pretenses,  representations  or  promises.  Can  such  a  busi- 
ness be  properly  pronounced  a  fraud  within  the  statutes  of  the 
United  States  ?  .  .  . 

That  the  complainants  had  a  hearing  before  the  Postmaster 
General,  and  that  his  decision  was  made  after  such  hearing,  can- 
not affect  the  case.  The  allegation  in  the  bill  as  to  the  nature 
of  the  claim  of  complainants  and  upon  what  it  is  founded,  is  ad- 
mitted by  the  demurrer,  and  we  therefore  have  undisputed  and 
admitted  facts,  which  show  upon  what  basis  the  treatment  by 
complainants  rests,  and  what  is  the  nature  and  character  of  their 
business.  From  these  admitted  facts  it  is  obvious  that  com- 
plainants in  conducting  their  business,  so  far  as  this  record  shows, 
do  not  violate  the  laws  of  Congress.  The  statutes  do  not  as  matter 
of  law  cover  the  facts  herein. 

Second.  Conceding  for  the  purpose  of  this  case,  that  Congress 
has  full  and  absolute  jurisdiction  over  the  mails,  and  that  it  may 
provide  who  may  and  who  may  not  use  them,  and  that  its  action 
is  not  subject  to  review  by  the  courts,  and  also  conceding  the 
conclusive  character  of  the  determination  by  the  Postmaster 
General  of  any  material  and  relevant  questions  of  fact  arising 
in  the  administration  of  the  statutes  of  Congress  relating  to  his 
department,  the  question  still  remains  as  to  the  power  of  the 
court  to  grant  relief  where  the  Postmaster  General  has  assumed 
and  exercised  jurisdiction  in  a  case  not  covered  by  the  statutes, 
and  where  he  has  ordered  the  detention  of  mail  matter  when  the 
statutes  have  not  granted  him  power  so  to  order.  Has  Congress 
intrusted  the  administration  of  these  statutes  wholly  to  the  dis- 
cretion of  the  Postmaster  General,  and  to  such  an  extent  that  his 
determination  is  conclusive  upon  all  questions  arising  under  those 
statutes,  even  though  the  evidence  which  is  adduced  before  him 
is  wholly  uncontradicted,  and  shows  beyond  any  room  for  dispute 
or  doubt  that  the  case  in  any  view  is  beyond  the  statutes,  and  not 
covered  or  provided  for  by  them  ? 

That  the  conduct  of  the  Post  Office  is  a  part  of  the  administra- 
tive department  of  the  government  is  entirely  true,  but  that  does 
not  necessarily  and  always  oust  the  courts  of  jurisdiction  to  grant 
rehef  to  a  party  aggrieved  by  any  action  by  the  head  or  one  of  the 
subordinate  officials  of  that  department  which  is  unauthorized 
by  the  statute  under  which  he  assumes  to  act.  The  acts  of  all  its 
officers  must  be  justified  by  some  law,  and  in  case  an  official  vio- 
lates the  law  to  the  injury  of  an  individual  the  courts  generally 
have  jurisdiction  to  grant  relief. 


84  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

The  Land  Department  of  the  United  States  is  administrative 
in  its  character,  and  it  has  been  frequently  held  by  this  court 
that,  in  the  administration  of  the  public  land  system  of  the  United 
States,  questions  of  fact  are  for  the  consideration  and  judgment 
of  the  Land  Department,  and  its  judgment  thereon  is  final.  Bur- 
fenningy.  Chicago  &c.  Railway  Company,  163  U.  S.  321;  Johnson 
V.  Drew,  171  U.  S.  93,  99;  Gardner  v.  Bonestell,  180  U.  S.  362. 

While  the  analogy  between  the  above  cited  cases  and  the  one 
now  before  us  is  not  perfect,  yet  even  in  them  it  is  held  that  the 
decisions  of  the  officers  of  the  department  upon  questions  of  law 
do  not  conclude  the  courts,  and  they  have  power  to  grant  relief 
to  an  individual  aggrieved  by  an  erroneous  decision  of  a  legal 
question  by  department  officers.  .  .  . 

Here  it  is  contended  that  the  Postmaster  General  has,  in  a  case 
not  covered  by  the  acts  of  Congress,  excluded  from  the  mails  let- 
ters addressed  to  the  complainants.  His  right  to  exclude  letters, 
or  to  refuse  to  permit  their  delivery  to  persons  addressed,  must 
depend  upon  some  law  of  Congress,  and  if  no  such  law  exist,  then 
he  cannot  exclude  or  refuse  to  deliver  them.  Conceding,  arguendo, 
that  when  a  question  of  fact  arises,  which,  if  found  in  one  way, 
would  show  a  violation  of  the  statutes  in  question  in  some  particu- 
lar, the  decision  of  the  Postmaster  General  that  such  violation 
had  occurred,  based  upon  some  evidence  to  that  effect,  would  be 
conclusive  and  final,  and  not  the  subject  of  review  by  any  court, 
yet  to  that  assumption  must  be  added  the  statement  that  if  the 
evidence  before  the  Postmaster  General,  in  any  view  of  the  facts, 
failed  to  show  a  violation  of  any  Federal  law,  the  determination 
of  that  official  that  such  violation  existed  would  not  be  the  deter- 
mination of  a  question  of  fact,  but  a  pure  mistake  of  law  on  his 
part,  because  the  facts  being  conceded,  whether  they  amounted 
to  a  violation  of  the  statutes  would  be  a  legal  question  and  not  a 
question  of  fact.  Being  a  question  of  law  simply,  and  the  case 
stated  in  the  bill  being  outside  of  the  statutes,  the  result  is  that 
the  Postmaster  General  has  ordered  the  retention  of  letters  directed 
to  complainants  in  a  case  not  authorized  by  those  statutes.  To 
authorize  the  interference  of  the  Postmaster  General,  the  facts 
stated  must  in  some  aspect  be  sufficient  to  permit  him  under  the 
statutes  to  make  the  order. 

The  facts,  which  are  here  admitted  of  record,  show  that  the 
case  is  not  one  which  by  any  construction  of  those  facts  is  cov- 
ered or  provided  for  by  the  statutes  under  which  the  Postmaster 
General  has  assumed  to  act,  and  his  determination  that  those 


UNITED    STATES   V.    JU   TOY.  85 

admitted  facts  do  authorize  his  action  is  a  clear  mistake  of  law 
as  applied  to  the  admitted  facts,  and  the  courts,  therefore,  must 
have  power  in  a  proper  proceeding  to  grant  relief.  Otherwise, 
the  individual  is  left  to  the  absolutely  uncontrolled  and  arbi- 
trary action  of  a  public  and  administrative  officer,  whose  action 
is  unauthorized  by  any  law  and  is  in  violation  of  the  rights  of 
the  individual.  Where  the  action  of  such  an  officer  is  thus  un- 
authorized he  thereby  violates  the  property  rights  of  the  person 
whose  letters  are  withheld.  .  .  . 

The  Postmaster  General's  order  being  the  result  of  a  mistaken 
view  of  the  law  could  not  operate  as  a  defence  to  this  action  on 
the  part  of  the  defendant,  though  it  might  justify  his  obedience 
thereto  until  some  action  of  the  court.  In  such  a  case  as  the  one 
before  us  there  is  no  adequate  remedy  at  law,  the  injunction  to 
prohibit  the  further  withholding  of  the  mail  from  complainants 
being  the  only  remedy  at  all  adequate  to  the  full  relief  to  which 
the  complainants  are  entitled.  Although  the  Postmaster  General 
had  jurisdiction  over  the  subject-matter  (assuming  the  validity 
of  the  acts)  and  therefore  it  was  his  duty  upon  complaint  being 
made  to  decide  the  question  of  law  whether  the  case  stated  was 
within  the  statute,  yet  such  decision  being  a  legal  error  does  not 
bind  the  courts.  .  .  .  Judgment  reversed.^ 

White,  J.,  and  McKenna,  J.,  believing  the  judgment  should 
be  affirmed,  dissented.  .  .  . 


UNITED  STATES  v.  JU  TOY. 
Supreme  Court  of  the  United  States.     1905. 

[198  United  States,  253.] 

Certificate  from  the  Circuit  Court  of  Appeals  for  the  Ninth 
Circuit. 

The  facts  are  stated  in  the  opinion. 

Assistant  Attorney  General  McReynolds  for  the  United  States. 
Hayden  Johnson,  with  whom  Henry  C.  Dibble  and  Oliver  Dibble 
were  on  the  brief,  for  appellee. 

1  See  Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  106  (1904);  and  Public  Clear- 
ing House  V.  Coyne,  194  U.  S.  497  (1904). 

Compare  Degge  v.  Hitchcock,  229  U.  S.  162  (1913).  —  Ed. 


86  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

Holmes,  J.,  delivered  the  opinion  of  the  court. 

This  case  comes  here  on  a  certificate  from  the  Circuit  Court 
of  Appeals  presenting  certain  questions  of  law.  It  appears  that 
the  appellee,  being  detained  by  the  master  of  the  Steamship 
Doric  for  return  to  China,  presented  a  petition  for  habeas  corpus 
to  the  District  Court,  alleging  that  he  was  a  native-born  citizen 
of  the  United  States,  returning  after  a  temporary  departure, 
and  was  denied  permission  to  land  by  the  collector  of  the  port  of 
San  Francisco.  It  also  appears  from  the  petition  that  he  took 
an  appeal  from  the  denial,  and  that  the  decision  was  affirmed  by 
the  Secretary  of  Commerce  and  Labor.  No  further  grounds  are 
stated.  The  writ  issued  and  the  United  States  made  return,  and 
answered  showing  all  the  proceedings  before  the  Department, 
which  are  not  denied  to  have  been  in  regular  form,  and  setting 
forth  all  of  the  evidence  and  the  orders  made.  The  answer  also 
denied  the  allegations  of  the  petition.  Motions  to  dismiss  the 
writ  were  made  on  the  grounds  that  the  decision  of  the  Secretary 
was  conclusive  and  that  no  abuse  of  authority  was  shown.  These 
were  denied,  and  the  District  Court  decided  seemingly  on  new 
evidence,  subject  to  exceptions,  that  Ju  Toy  was  a  native-born 
citizen  of  the  United  States.  An  appeal  was  taken  to  the  Circuit 
Court  of  Appeals  alleging  errors  the  nature  of  which  has  been 
indicated.  Thereupon  the  latter  court  certified  the  following 
questions : 

"  First.  Should  a  District  Court  of  the  United  States  grant 
a  writ  of  habeas  corpus  in  behalf  of  a  person  of  Chinese  descent 
being  held  for  return  to  China  by  the  steamship  company  which 
brought  him  therefrom,  who  having  recently  arrived  at  a  port 
of  the  United  States  made  application  to  land  as  a  native-born 
citizen  thereof  and  who,  after  examination  by  the  duly  authorized 
immigration  officers,  was  found  by  them  not  to  have  been  born 
in  the  United  States,  was  denied  admission  and  ordered  deported, 
which  finding  and  action  upon  appeal  was  affirmed  by  the  Secre- 
tary of  Commerce  and  Labor,  when  the  foregoing  facts  appear 
to  the  court  and  the  petition  for  the  writ  alleges  unlawful  deten- 
tion on  the  sole  ground  that  petitioner  does  not  come  within  the 
restrictions  of  the  Chinese  exclusion  acts,  because  born  in  and  a 
citizen  of  the  United  States  and  does  not  allege  or  show  in  any 
other  way  unlawful  action  or  abuse  of  their  discretion  or  powers 
by  the  immigration  officers  who  excluded  him  ? 

"  Second.  In  a  habeas  corpus  proceeding  should  a  District 
Court  of  the  United  States  dismiss  the  writ  or  should  it  direct 


UNITED   STATES   V.    JU   TOY.  87 

a  new  or  further  hearing  upon  evidence  to  be  presented  where 
the  writ  had  been  granted  in  behalf  of  a  person  of  Chinese  descent 
being  held  by  the  steamship  company  for  return  to  China  from 
whence  it  brought  him,  who  recently  arrived  from  that  country 
and  asked  permission  to  land  upon  the  ground  that  he  was  born  in 
and  was  a  citizen  of  the  United  States,  when  the  uncontradicted 
return  and  answer  show  that  such  person  was  granted  a  hearing 
by  the  proper  immigration  officers  who  found  he  was  not  born 
in  the  United  States,  that  his  application  for  admission  was  con- 
sidered and  denied  by  such  officers,  and  that  the  denial  was  affirmed 
upon  appeal  to  the  Secretary  of  Commerce  and  Labor,  and  where 
nothing  more  appears  to  show  that  such  executive  officers  failed 
to  grant  a  proper  hearing,  abused  their  discretion,  or  acted  in 
any  unlawful  or  improper  way  upon  the  case  presented  to  them 
for  determination  ? 

"  Third.  In  a  habeas  corpus  proceeding  in  a  District  Court 
of  the  United  States  instituted  in  behalf  of  a  person  of  Chinese 
descent  being  held  for  return  to  China  by  the  steamship  com- 
pany which  recently  brought  him  therefrom  to  a  port  of  the 
United  States  and  who  applied  for  admission  therein  upon  the 
ground  that  he  was  a  native-born  citizen  thereof  but  who,  after 
a  hearing,  the  lawfully  designated  immigration  officers  found 
was  not  bom  therein  and  to  whom  they  denied  admission  which 
finding  and  denial,  upon  appeal  to  the  Secretary  of  Commerce 
and  Labor,  was  affirmed  —  should  the  court  treat  the  finding 
and  action  of  such  executive  officers  upon  the  question  of  citizen- 
ship and  other  questions  of  fact  as  having  been  made  by  a  tribunal 
authorized  to  decide  the  same  and  as  final  and  conclusive  unless 
it  be  made  affirmatively  to  appear  that  such  officers,  in  the  case 
submitted  to  them,  abused  the  discretion  vested  in  them  or  in 
some  other  way  in  hearing  and  determining  the  same  committed 
prejudicial  error  ?  " 

We  assume  in  what  we  have  to  say,  as  the  questions  assume, 
that  no  abuse  of  authority  of  any  kind  is  alleged.  That  being 
out  of  the  case,  the  first  of  them  is  answered  by  the  case  of  United 
States  V.  Sing  Tuck,  194  U.  S.  161,  170.  "  A  petition  for  habeas 
corpus  ought  not  to  be  entertained,  imless  the  court  is  satisfied 
that  the  petitioner  can  make  out  at  least  a  prima  facie  case." 
This  petition  should  have  been  denied  on  this  ground,  irrespective 
of  what  more  we  have  to  say,  because  it  alleged  nothing  except 
citizenship.  It  disclosed  neither  abuse  of  authority  nor  the 
existence  of  evidence  not  laid  before  the  Secretary.     It  did  not 


88  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

even  set  forth  that  evidence  or  allege  its  effect.  But  as  it  was 
entertained  and  the  District  Court  found  for  the  petitioner  it 
would  be  a  severe  measure  to  order  the  petition  to  be  dismissed 
on  that  ground  now,  and  we  pass  on  to  further  considerations. 

The  broad  question  is  presented  whether  or  not  the  decision 
of  the  Secretary  of  Commerce  and  Labor  is  conclusive.  It  was 
held  in  United  States  v.  Sing  Tuck,  194  U.  S.  161,  167,  that  the 
act  of  August  18,  1894,  c.  301,  §  1,  28  Stat.  372,  390,  purported 
to  make  it  so,  but  whether  the  statute  could  have  that  effect 
constitutionally  was  left  untouched,  except  by  a  reference  to  cases 
where  an  opinion  already  had  been  expressed.  To  quote  the 
latest  first,  in  The  Japanese  Immigrant  Case  (Yamataya  v.  Fisher), 
189  U.  S.  86,  97,  it  was  said:  "  That  Congress  may  exclude  ahens 
of  a  particular  race  from  the  United  States;  prescribe  the  terms 
and  conditions  upon  which  certain  classes  of  aliens  may  come  to 
this  country;  estabhsh  regulations  for  sending  out  of  the  country 
such  aliens  as  come  here  in  violation  of  law;  and  commit  the  en- 
forcement of  such  provisions,  conditions  and  regulations  exclu- 
sively to  executive  officers,  without  judicial  intervention,  are 
principles  firmly  estabhshed  by  the  decisions  of  this  court."  See 
also  Turner  v.  Williams,  194  U.  S.  279,  290,  291;  Chin  Bak  Kan 
V.  United  States,  186  U.  S.  193,  200.  In  Fok  Young  Yo  v.  United 
States,  185  U.  S.  296,  304,  305,  it  was  held  that  the  decision  of  the 
collector  of  customs  on  the  right  of  transit  across  the  territory  of 
the  United  States  was  conclusive,  and,  still  more  to  the  point, 
in  Lem  Moon  Sing  v.  United  States,  158  U.  S.  538,  where  the 
petitioner  for  habeas  corpus  alleged  facts  which,  if  true,  gave  him 
a  right  to  enter  and  remain  in  the  country,  it  was  held  that  the 
decision  of  the  collector  was  final  as  to  whether  or  not  he  belonged 
to  the  privileged  class. 

It  is  true  that  it  may  be  argued  that  these  cases  are  not  directly 
conclusive  of  the  point  now  under  decision.  It  may  be  said  that 
the  parties  concerned  were  aliens,  and  that  although  they  alleged 
absolute  rights,  and  facts  which  it  was  contended  went  to  the 
jurisdiction  of  the  officer  making  the  decision,  still  their  rights 
were  only  treaty  or  statutory  rights,  and  therefore  were  subject 
to  the  implied  qualification  imposed  by  the  later  statute,  which 
made  the  decision  of  the  collector  with  regard  to  them  final.  The 
meaning  of  the  cases  and  the  language  which  we  have  quoted  is 
not  satisfied  by  so  narrow  an  interpretation,  but  we  do  not  delay 
upon  them.     They  can  be  read. 


UNITED   STATES   V.   JU   TOY.  89 

It  is  established,  as  we  have  said,  that  the  act  purports  to  make 
the  decision  of  the  Department  final,  whatever  the  ground  on 
which  the  right  to  enter  the  country  is  claimed  —  as  well  when 
it  is  citizenship  as  when  it  is  domicil  and  the  belonging  to  a  class 
excepted  from  the  exclusion  acts.  United  States  v.  Sing  Tuck, 
194  U.  S.  161,  167;  Lem  Moon  Sing  v.  United  States,  158  U.  S. 
538,  546,  547.  It  also  is  established  by  the  former  case  and  others 
which  it  cites  that  the  relevant  portion  of  the  act  of  August  18, 
1894,  c.  301,  is  not  void  as  a  whole.  The  statute  has  been  upheld 
and  enforced.  But  the  relevant  portion  being  a  single  section, 
accomplishing  all  its  results  by  the  same  general  words,  must  be 
valid  as  to  all  that  it  embraces,  or  altogether  void.  An  exception 
of  a  class  constitutionally  exempted  cannot  be  read  into  those  , 
general  words  merely  for  the  purpose  of  saving  what  remains.  ' 
That  has  been  decided  over  and  over  again.  United  States  v. 
Reese,  92  U.  S.  214,  221;  Trade-Mark  Cases,  100  U.  S.  82,  98,  99; 
Allen  V.  Louisiana,  103  U.  S.  80,  84;  United  States  v.  Harris,  106 
U.  S.  629,  641,  642;  Virginia  Coupon  Cases,  114  U.  S.  269,  305; 
Baldwin  v.  Franks,  120  U.  S.  678,  685-689;  Smiley  v.  Kansas, 
196  U,  S.  447,  455.  It  necessarily  follows  that  when  such  words 
are  sustained  they  are  sustained  to  their  full  extent. 

In  view  of  the  cases  which  we  have  cited  it  seems  no  longer 
open  to  discuss  the  question  propounded  as  a  new  one.  There- 
fore we  do  not  analyze  the  nature  of  the  right  of  a  person  pre- 
senting himself  at  the  frontier  for  admission.  In  re  Ross,  140 
U.  S.  453,  464.  But  it  is  not  improper  to  add  a  few  words.  The 
petitioner,  although  physically  within  our  boundaries,  is  to  be 
regarded  as  if  he  had  been  stopped  at  the  limit  of  our  jurisdiction 
and  kept  there  while  his  right  to  enter  was  under  debate.  If,  for 
the  purpose  of  argument,  we  assume  that  the  Fifth  Amendment 
applies  to  him  and  that  to  deny  entrance  to  a  citizen  is  to  deprive 
him  of  liberty,  we  nevertheless  are  of  opinion  that  with  regard  to 
him  due  process  of  law  does  not  require  a  judicial  trial.  That  is 
the  result  of  the  cases  which  we  have  cited  and  the  almost  neces- 
sary result  of  the  power  of  Congress  to  pass  exclusion  laws.  That 
the  decision  may  be  intrusted  to  an  executive  officer  and  that  his 
decision  is  due  process  of  law  was  affirmed  and  explained  in  Nishi- 
mura  Ekiu  v.  United  States,  142  U.  S.  651,  660,  and  in  Fong  Yue 
Ting  V.  United  States,  149  U.  S.  698,  713,  before  the  authorities 
to  which  we  already  have  referred.  It  is  unnecessary  to  repeat 
the  often  quoted  remarks  of  Mr.  Justice  Curtis,  speaking  for 
the  whole  court  in  Murray's  Lessee  v.  Hoboken  Land  &  Improve- 


90  LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL   POWERS. 

ment  Co.,  18  How.  272,  280,  to  show  that  the  requirement  of  a 
judicial  trial  does  not  prevail  in  every  case.  Lem  Moon  Sing  v. 
United  States,  158  U.  S.  538,  546,  547;  Japanese  Immigrant  Case, 
189  U.  S.  86,  100;  PubUc  Clearing  House  v.  Coyne,  194  U.  S.  497, 
508,  509. 

We  are  of  opinion  that  the  first  question  should  be  answered, 
no;  that  the  third  question  should  be  answered,  yes,  with  the 
result  that  the  second  question  should  be  answered  that  the  writ 
should  be  dismissed,  as  it  should  have  been  dismissed  in  this  case. 

It  will  he  so  certified} 

Brewer,  J.,  with  whom  Peckham,  J.,  concurred,  dissenting.  .  .  . 

Day,  J.,  also  dissented. 


UNITED  STATES  v.   EVANS. 
Supreme  Court  of  the  United  States.     1909. 
[213  United  States,  297.] 

Certiorari  to  the  Court  of  Appeals  of  the  District  of  Columbia. 

The  facts  are  stated  in  the  opinion. 

The  Solicitor  General  (Hoyt)  for  petitioner.  No  counsel  ap- 
peared for  respondents. 

Fuller,  C.  J.,  delivered  the  opinion  of  the  court. 

Appellees  were  tried  under  an  indictment  for  murder  in  the 
Supreme  Court  of  the  District  of  Columbia  on  February  1,  1907, 
and  found  not  guilty.  The  United  States  appealed  to  the  Court 
of  Appeals  of  the  District,  and  assigned  error  on  exceptions  taken 

1  See  Pearson  v.  Williams,  202  U.  S.  281  (1906). 

In  Chin  Yow  v.  United  States,  208  U.  S.  8  (1908),  a  Chinese  person  desiring 
to  enter  the  United  States  alleged  that  the  executive  officials  prevented  him 
from  obtaining  testimony;  and  it  was  held  that  a  writ  of  habeas  corpus  should 
issue  in  order  to  determine  whether  the  petitioner  had  had  a  proper  hearing. 

In  Tang  Tun  v.  Edsell,  223  U.  S.  673  (1912),  it  was  held  that  abuse  of 
executive  discretion  is  not  shown  by  mere  rapidity  of  decision. 

As  to  the  finahty  of  decisions  by  the  Commissioner  of  the  General  Law 
Office,  see  Johnson  v.  Towsley,  13  Wall.  72  (1871);  Vance  v.  Burbank,  101 
U.  S.  514  (1879) ;  United  States  v.  Minor,  114  U.  S.  233  (1885) ;  Lee  v.  Johnson, 
116  U.  S.  48  (1885);  and  Estes  v.  Timmons,  199  U.  S.  391  (1905).  —  Ed. 


UNITED    STATES   V.    EVANS.  91 

during  the  trial  to  the  exclusion  of  certain  evidence.  This  right 
to  appeal  was  claimed  under  §  935  of  the  code,  which  reads  as 
follows :  — 

"  In  all  criminal  prosecutions  the  United  States  or  the  District 
of  Columbia,  as  the  case  may  be,  shall  have  the  same  right  of 
appeal  as  is  given  to  the  defendant,  including  the  right  to  a  bill 
of  exceptions;  provided,  that  if  on  such  appeal  it  shall  be  found 
that  there  was  error  in  the  rulings  of  the  court  during  the  trial,  a 
verdict  in  favor  of  the  defendant  shall  not  be  set  aside." 

The  appeal  was  dismissed  for  want  of  jurisdiction,  and  the  case 
brought  here  on  certiorari. 

The  case  of  United  States  v.  Sanges,  144  U.  S.  310,  reiterated 
the  then  well  settled  rule  that  the  right  of  review  in  criminal 
cases  was  limited  to  review  at  the  instance  of  the  defendant  after 
a  decision  in  favor  of  the  Government.  United  States  v.  Dickin- 
son, 213  U.  S.  92. 

In  United  States  v.  Evans,  28  App.  D.  C.  264,  under  §  935  of 
the  code,  the  right  was  exercised  without  question  in  a  case  where 
an  indictment  had  been  set  aside  on  demurrer,  and  Chief  Justice 
Shepard  in  delivering  the  opinion  of  the  court  in  this  case  (30 
App.  D.  C.  58),  said:  — 

"  It  may  be  assumed  also  that  such  a  writ  of  error  would  lie 
to  review  a  judgment  arresting  a  judgment  of  conviction  for  the 
insufficiency  of  the  indictment,  or  one  sustaining  a  special  plea 
in  bar,  when  the  defendant  has  not  been  put  in  jeopardy." 

But  the  Chief  Justice  further  said  that  it  was  contended  by 
appellants  that  a  writ  of  error  lies  also  "  upon  a  judgment  where 
there  has  been  a  verdict  of  not  guilty,  not,  however,  to  obtain 
a  reversal  of  that  judgment,  but  to  obtain  an  opinion  upon  ex- 
ceptions taken  at  the  trial  that  may  serve  as  a  rule  of  obser- 
vance in  cases  that  may  hereafter  arise." 

But  this  contention  was  rejected  by  the  court  in  view  of  the 
objectionable  consequences  that  would  result  from  such  an  exer- 
cise of  jurisdiction.  "  The  appellee  in  such  a  case,  having  been 
freed  from  further  prosecution  by  the  verdict  in  his  favor,  has 
no  interest  in  the  question  that  may  be  determined  in  the  pro- 
ceedings on  appeal  and  may  not  even  appear.  Nor  can  his  appear- 
ance be  enforced.  Without  opposing  argument,  which  is  so 
important  to  the  attainment  of  a  correct  conclusion,  the  court 
is  called  upon  to  lay  down  rules  that  may  be  of  vital  interest  to 
persons  who  may  hereafter  be  brought  to  trial.  All  such  persons 
are  entitled  to  be  heard  on  all  questions  affecting  their  rights, 


92  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

and  it  is  a  harsh  rule  that  would  bind  them  by  decisions  made  in 
what  are  practically  '  moot '  cases,  where  opposing  views  have 
not  been  presented." 

It  was  in  the  hght  of  these  considerations  that  the  act  of  Con- 
gress of  March  2,  1907,  34  Stat.  1246,  c.  2564,  was  subjected  to 
the  limitations  therein  contained.  United  States  v.  Keitel,  211 
U.  S.  370,  398;  United  States  v.  Mason,  213  U.  S.  115. 

By  the  constitutions  of  several  of  the  States  the  justices  of  the 
highest  judicial  tribunals  are  obliged  to  give  their  opinions  on 
important  questions  of  law  upon  solemn  occasions,  when  required 
by  either  branch  of  the  legislature,  or  the  governor  or  governor 
and  council,  and  there  are  many  interesting  discussions  in  the 
state  reports,  as  well  as  in  articles  by  the  law  writers,  in  respect 
of  such  a  provision.^ 

But  no  such  requirement  obtains  in  federal  jurisprudence. 

Such  a  provision  was  suggested  in  the  Federal  Constitutional 
Convention,  but  disappeared  in  the  Committee  on  Detail. 

In  1793  President  Washington  sought  to  take  the  opinion  of 
the  judges  of  the  Supreme  Court  of  the  United  States  as  to  various 
questions  arising  under  our  treaties  with  France,  but  they  declined 
to  respond.  Marshall  thus  speaks  of  the  matter  in  his  Life  of 
Washington :  — 

"  About  this  time  it  is  probable  that  the  difficulties  felt  by  the 
judges  of  the  Supreme  Court  in  expressing  their  sentiments  on 
the  points  referred  to  them  were  communicated  to  the  Executive. 
Considering  themselves  as  merely  constituting  a  legal  tribunal 
for  the  decision  of  controversies  brought  before  them  in  legal 
form,  these  gentlemen  deemed  it  improper  to  enter  the  field  of 
pohtics  by  declaring  their  opinion  on  questions  not  growing  out 
of  thecase  before  them."     Story  on  the  Constitution,  §  1571. 

It  was  long  ago  held  by  this  court  that  the  discharge  of  such 
a  function  was  not  an  exercise  of  judicial  power.  United  States 
V.  Ferreira,  13  How.  40,  note  on  page  52;  Hayburn's  Case,  2  Dall. 
409;  see  note,  pp.  410,  411,  412,  413,  414.  And  that  ruling  sus- 
tains the  conclusion  of  the  Court  of  Appeals,  in  the  matter  of  the 
construction  of  this  act  to  which  the  opinion  is  confined. 

Writ  of  certiorari  quashed, 

1  Thayer  on  Advisory  Opinions,  Legal  Essays,  43;  Dubuque,  The  Duty 
of  Judges  as  Constitutional  Advisors,  24  Amer.  Law  Review,  369;  Emery, 
C.  J.,  2  Maine  Law  Review,  1;  Cases  collected  in  6  Amer.  &  Eng.  Cycl.  (2d 
ed.)  1065.  And  see  103  Maine,  306,  and  especially  opinion  of  Savage,  J.  — 
Rep. 


MUSKRAT   V.    UNITED    STATES.  93 

MUSKRAT  V.   UNITED  STATES. 

Supreme  Court  of  the  United  States.     1911. 

[219  U.  S.  346.]  1 

Appeals  from  the  Court  of  Claims. 

These  were  cases  based  upon  an  act  of  Congress  passed  March 
1,  1907  (34  U.  S.  Stats,  at  Large,  c.  2285,  pp.  1015,  1028),  which, 
among  other  things,  especially  provided  that  certain  persons 
should  be  empowered  to  institute  suits  in  the  Court  of  Claims,  in 
order  to  test  the  validity  of  certain  acts  of  Congress,  and  that 
there  should  be  an  appeal  to  the  Supreme  Court  of  the  United 
States.  Suits  having  been  brought  accordingly  in  the  Court  of 
Claims,  and  that  court  having  sustained  the  validity  of  the  acts 
and  having  dismissed  the  petitions  (44  Ct.  of  Claims,  137,  283), 
these  appeals  were  taken. 

John  J.  Hemphill,  William  H.  Robeson,  and  Daniel  B.  Henderson, 
with  whom  Frank  I.  Boudinot  was  on  the  brief,  for  appellants. 

W.  W.  Hastings  for  the  Cherokee  Nation. 

S.  T.  Bledsoe  and  Evans  Browne  submitted  a  brief,  by  leave  of 
the  court,  as  amici  curiae,  on  behalf  of  certain  full  blood  Choctaw 
and  Cherokee  allottees. 

Day,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  first  question  in  these  cases,  as  in  others,  involves  the  juris- 
diction of  this  court,  to  entertain  the  proceeding,  and  that  de- 
pends upon  whether  the  jurisdiction  conferred  is  within  the  power 
of  Congress,  having  in  view  the  limitations  of  the  judicial  power 
as  established  by  the  Constitution  of  the  United  States. 

Section  1  of  Article  III  of  the  Constitution  provides : 

"  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court  and  in  such  inferior  courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish." 

Section  2  of  the  same  Article  provides : 

"  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority; 
—  to  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls;  —  to  all  cases  of  admiralty  and  maritime  jurisdiction;  — 
to  controversies  to  which  the  United  States  shall  be  a  party;  to 
controversies  between  two  or  more  States;  —  between  a  State 
and  citizens  of  another  State;  —  between  citizens  of  different 

^  The  statement  here  presented  has  been  framed  on  the  opinion.  —  En. 


94  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

States;  —  between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States,  and  between  a  State,  or  the  citizens 
thereof,  and  foreign  states,  citizens  or  subjects."  .  .  . 

In  1793,  by  direction  of  the  President,  Secretary  of  State  Jeffer- 
son addressed  to  the  Justices  of  the  Supreme  Court  a  communica- 
tion soliciting  their  views  upon  the  question  whether  their  advice 
to  the  executive  would  be  available  in  the  solution  of  important 
questions  of  the  construction  of  treaties,  laws  of  nations  and  laws 
of  the  land,  which  the  Secretary  said  were  often  presented  under 
circumstances  which  "  do  not  give  a  cognizance  of  them  to  the  tribu- 
nals of  the  country."  The  answer  to  the  question  was  postponed 
until  the  subsequent  sitting  of  the  Supreme  Court,  when  Chief 
Justice  Jay  and  his  associates  answered  to  President  Washington 
that  in  consideration  of  the  lines  of  separation  drawn  by  the  Con- 
stitution between  the  three  departments  of  government,  and 
being  judges  of  a  court  of  last  resort,  afforded  strong  arguments 
against  the  propriety  of  extrajudicially  deciding  the  questions 
alluded  to,  and  expressing  the  view  that  the  power  given  by  the 
Constitution  to  the  President  of  calling  on  heads  of  departments 
for  opinions  "  seems  to  have  been  purposely,  as  well  as  expressly, 
united  to  the  executive  departments."  Correspondence  &  Public 
Papers  of  John  Jay,  vol.  3,  p.  486. 

The  subject  underwent  a  complete  examination  in  the  case  of 
Gordon  v.  United  States,  reported  in  an  appendix  to  117  U.  S.  697, 
in  which  the  opinion  of  Mr.  Chief  Justice  Taney,  prepared  by  him 
and  placed  in  the  hands  of  the  clerk,  is  published  in  full.  It  is 
said  to  have  been  his  last  judicial  utterance,  and  the  whole  subject 
of  the  nature  and  extent  of  the  judicial  power  conferred  by  the 
Constitution  is  treated  with  great  learning  and  fulness.  In  that 
case  an  act  of  Congress  was  held  invalid  which  undertook  to  confer 
jurisdiction  upon  the  Court  of  Claims  and  thence  by  appeal  to 
this  court,  the  judgment,  however,  not  to  be  paid  until  an  appro- 
priation had  been  estimated  therefor  by  the  Secretary  of  the 
Treasury.  .  .  . 

In  the  case  of  Baltimore  &  Ohio  R.  R.  Co.  v.  Interstate  Commerce 
Commission,  215  U.  S.  216,  this  court  declined  to  take  jurisdiction 
of  a  case  which  undertook  to  extend  its  appellate  power  to  the  con- 
sideration of  a  case  in  which  there  was  no  judgment  in  the  court 
below.  In  that  case  former  cases  were  reviewed  by  Mr.  Chief 
Justice  Fuller,  who  spoke  for  the  court,  and  the  requirement  that 
this  court  adhere  strictly  to  the  jurisdiction,  original  and  appellate, 
conferred  upon  it  by  the  Constitution,  was  emphasized  and  en- 


MUSKRAT   V.    UNITED    STATES.  95 

forced.  It  is  therefore  apparent  that  from  its  earliest  history 
this  court  has  consistently  declined  to  exercise  any  powers  other 
than  those  which  are  strictly  judicial  in  their  nature.  .  .  . 

By  the  express  terms  of  the  Constitution,  the  exercise  of  the 
judicial  power  is  limited  to  "  cases  "  and  "  controversies."  Be- 
yond this  it  does  not  extend,  and  unless  it  is  asserted  in  a  case  or 
controversy  within  the  meaning  of  the  Constitution,  the  power 
to  exercise  it  is  nowhere  conferred. 

What,  then,  does  the  Constitution  mean  in  conferring  this 
judicial  power  with  the  right  to  determine  "  cases  "  and  "  con- 
troversies "  ?  A  "  case  "  was  defined  by  Mr.  Chief  Justice 
Marshall  as  early  as  the  leading  case  of  Marbury  v.  Madison,  1 
Cranch,  137,  to  be  a  suit  instituted  according  to  the  regular  course 
of  judicial  procedure.  And  what  more,  if  anything,  is  meant  in 
the  use  of  the  term  "  controversy  "  ?  That  question  was  dealt 
with  by  Mr.  Justice  Field,  at  the  circuit,  in  the  case  of  In  re  Pacific 
Railway  Commission,  32  Fed.  Rep.  241,  255.  Of  these  terms  that 
learned  Justice  said : 

"  The  judicial  article  of  the  Constitution  mentions  cases  and 
controversies.  The  term  '  controversies,'  if  distinguishable  at  all 
from  '  cases,'  is  so  in  that  it  is  less  comprehensive  than  the  latter, 
and  includes  only  suits  of  a  civil  nature.  Chisholm  v.  Georgia,  2 
Dall.  431,  432;  1  Tuck.  Bl.  Comm.  App.  420,  421.  By  cases  and 
controversies  are  intended  the  claims  of  litigants  brought  before 
the  courts  for  determination  by  such  regular  proceedings  as  are 
established  by  law  or  custom  for  the  protection  or  enforcement  of 
rights,  or  the  prevention,  redress,  or  punishment  of  wrongs. 
Whenever  the  claim  of  a  party  under  the  Constitution,  laws,  or 
treaties  of  the  United  States  takes  such  a  form  that  the  judicial 
power  is  capable  of  acting  upon  it,  then  it  has  become  a  case.  The 
term  implies  the  existence  of  present  or  possible  adverse  parties 
whose  contentions  are  submitted  to  the  court  for  adjudication." 

The  power  being  thus  limited  to  require  an  application  of  the 
judicial  power  to  cases  and  controversies,  is  the  act  which  under- 
took to  authorize  the  present  suits  to  determine  the  constitutional 
validity  of  certain  legislation  within  the  constitutional  authority 
of  the  court  ?  This  inquiry  in  the  case  before  us  includes  the 
broader  question,  When  may  this  court,  in  the  exercise  of  the 
judicial  power,  pass  upon  the  constitutional  validity  of  an  act  of 
Congress  ?  That  question  has  been  settled  from  the  early  history 
of  the  court,  the  leading  case  on  the  subject  being  Marbury  v. 
Madison,  supra. 


96  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

In  that  case  Chief  Justice  Marshall,  who  spoke  for  the  court, 
was  careful  to  point  out  that  the  right  to  declare  an  act  of  Con- 
gress unconstitutional  could  only  be  exercised  when  a  proper  case 
between  opposing  parties  was  submitted  for  judicial  determina- 
tion; that  there  was  no  general  veto  power  in  the  court  upon 
the  legislation  of  Congress;  and  that  the  authority  to  declare  an 
act  unconstitutional  sprung  from  the  requirement  that  the  court, 
in  administering  the  law  and  pronouncing  judgment  between 
the  parties  to  a  case,  and  choosing  between  the  requirements  of  the 
fundamental  law  established  by  the  people  and  embodied  in  the 
Constitution  and  an  act  of  the  agents  of  the  people,  acting  under 
authority  of  the  Constitution,  should  enforce  the  Constitution 
as  the  supreme  law  of  the  land.  The  Chief  Justice  demonstrated, 
in  a  manner  which  has  been  regarded  as  settling  the  question, 
that  with  the  choice  thus  given  between  a  constitutional  require- 
ment and  a  conflicting  statutory  enactment,  the  plain  duty  of 
the  court  was  to  follow  and  enforce  the  Constitution  as  the  supreme 
law  established  by  the  people.  And  the  court  recognized,  in 
Marbury  v.  Madison  and  subsequent  cases,  that  the  exercise  of 
this  great  power  could  only  be  invoked  in  cases  which  came  regu- 
larly before  the  courts  for  determination,  for,  said  the  Chief 
Justice,  in  Osborn  v.  Bank  of  United  States,  9  Wheat.  819,  speaking 
of  the  third  Article  of  the  Constitution  conferring  judicial  pov/er: 

"  This  clause  enables  the  judicial  department  to  receive  juris- 
diction to  the  full  extent  of  the  Constitution,  laws,  and  treaties  of 
the  United  States,  when  any  question  respecting  them  shall  assume 
such  a  form  that  the  judicial  power  is  capable  of  acting  on  it. 
That  power  is  capable  of  acting  only  when  the  subject  is  submitted 
to  it  by  a  party  who  asserts  his  rights  in  the  form  prescribed  by 
law.  ■  It  then  becomes  a  case,  and  the  Constitution  declares  that 
the  judicial  power  shall  extend  to  all  cases  arising  under  the  Con- 
stitution, laws,  and  treaties  of  the  United  States.  ..." 

Applying  the  principles  thus  long  settled  by  the  decisions  of 
this  court  to  the  act  of  Congress  undertaking  to  confer  jurisdiction 
in  this  case,  we  find  that  William  Brown  and  Levi  B.  Gritts,  on 
their  own  behalf  and  on  behalf  of  all  other  Cherokee  citizens 
having  like  interest  in  the  property  allotted  under  the  act  of  July 
1,  1902,  and  David  Muskrat  and  J.  Henry  Dick,  for  themselves 
and  representatives  of  all  Cherokee  citizens  enrolled  as  such  for 
allotment  as  of  September  1,  1902,  are  authorized  and  empowered 
to  institute  suits  in  the  Court  of  Claims  to  determine  the  validity 
of  acts  of  Congress  passed  since  the  act  of  July  1,  1902,  in  so  far 


MUSKRAT  V.   UNITED    STATES.  97 

as  the  same  attempt  to  increase  or  extend  the  restrictions  upon 
alienation,  encumbrance,  or  the  right  to  lease  the  allotments  of 
lands  of  Cherokee  citizens,  or  to  increase  the  number  of  persons 
entitled  to  share  in  the  final  distribution  of  lands  and  funds  of  the 
Cherokees  beyond  those  enrolled  for  allotment  as  of  September  1, 
1902,  and  provided  for  in  the  said  act  of  July  1,  1902. 

The  jurisdiction  was  given  for  that  purpose  first  to  the  Court 
of  Claims  and  then  upon  appeal  to  this  court.  That  is,  the  object 
and  purpose  of  the  suit  is  wholly  comprised  in  the  determination 
of  the  constitutional  validity  of  certain  acts  of  Congress;  and 
furthermore,  in  the  last  paragraph  of  the  section,  should  a  judg- 
ment be  rendered  in  the  Court  of  Claims  or  this  court,  denying 
the  constitutional  validity  of  such  acts,  then  the  amount  of  com- 
pensation to  be  paid  to  attorneys  employed  for  the  purpose  of 
testing  the  constitutionality  of  the  law  is  to  be  paid  out  of  funds 
in  the  Treasury  of  the  United  States  belonging  to  the  beneficiaries, 
the  act  having  previously  provided  that  the  United  States  should 
be  made  a  party  and  the  Attorney  General  be  charged  with  the 
defense  of  the  suits. 

It  is  therefore  evident  that  there  is  neither  more  nor  less  in  this 
procedure  than  an  attempt  to  provide  for  a  judicial  determination, 
final  in  this  court,  of  the  constitutional  validity  of  an  act  of  Con- 
gress. .  .  .  The  right  to  declare  a  law  unconstitutional  arises 
because  an  act  of  Congress  relied  upon  by  one  or  the  other  of  such 
parties  in  determining  their  rights  is  in  conflict  with  the  funda- 
mental law.  The  exercise  of  this,  the  most  important  and  delicate 
duty  of  this  court,  is  not  given  to  it  as  a  body  with  revisory  power 
over  the  action  of  Congress,  but  because  the  rights  of  the  litigants 
in  justiciable  controversies  require  the  court  to  choose  between 
the  fundamental  law  and  a  law  purporting  to  be  enacted  within 
constitutional  authority,  but  in  fact  beyond  the  power  delegated 
to  the  legislative  branch  of  the  Government.  This  attempt  to 
obtain  a  judicial  declaration  of  the  validity  of  the  act  of  Congress 
is  not  presented  in  a  "  case  "  or  "  controversy,"  to  which,  under 
the  Constitution  of  the  United  States,  the  judicial  power  alone 
extends.  It  is  true  the  United  States  is  made  a  defendant  to  this 
action,  but  it  has  no  interest  adverse  to  the  claimants.  The 
object  is  not  to  assert  a  property  right  as  against  the  Government, 
or  to  demand  compensation  for  alleged  wrongs  because  of  action 
upon  its  part.  The  whole  purpose  of  the  law  is  to  determine  the 
constitutional  validity  of  this  class  of  legislation,  in  a  suit  not 
arising  between  parties  concerning  a  property  right  necessarily 


98  LEGISLATIVE,    EXECUTIVE,   AND   JUDICIAL    POWERS. 

involved  in  the  decision  in  question,  but  in  a  proceeding  against 
the  Government  in  its  sovereign  capacity,  and  concerning  which 
the  only  judgment  required  is  to  settle  the  doubtful  character 
of  the  legislation  in  question.  Such  judgment  will  not  conclude 
private  parties,  when  actual  litigation  brings  to  the  court  the 
question  of  the  constitutionality  of  such  legislation.  In  a  legal 
sense  the  judgment  could  not  be  executed,  and  amounts  in  fact 
to  no  more  than  an  expression  of  opinion  upon  the  validity  of  the 
acts  in  question.  Confining  the  jurisdiction  of  this  court  within 
the  limitations  conferred  by  the  Constitution,  which  the  court 
has  hitherto  been  careful  to  observe,  and  whose  boundaries  it  has 
refused  to  transcend,  we  think  the  Congress,  in  the  act  of  March 
1,  1907,  exceeded  the  limitations  of  legislative  authority,  so  far  as 
it  required  of  this  court  action  not  judicial  in  its  nature  within  the 
meaning  of  the  Constitution.  .  .  . 

The  questions  involved  in  this  proceeding  as  to  the  validity  of 
the  legislation  may  arise  in  suits  between  individuals,  and  when 
they  do  and  are  properly  brought  before  this  court  for  considera- 
tion they,  of  course,  must  be  determined  in  the  exercise  of  its 
judicial  functions.  For  the  reasons  we  have  stated,  we  are  con- 
strained to  hold  that  these  actions  present  no  justiciable  con- 
troversy within  the  authority  of  the  court,  acting  within  the 
limitations  of  the  Constitution  under  which  it  was  created.  As 
Congress,  in  passing  this  act  as  a  part  of  the  plan  involved,  evi- 
dently intended  to  provide  a  review  of  the  judgment  of  the  Court 
of  Claims  in  this  court,  as  the  constitutionality  of  important 
legislation  is  concerned,  we  think  the  act  cannot  be  held  to  intend 
to  confer  jurisdiction  on  that  court  separately  considered.  Con- 
nolly v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  565;  Employers' 
Liability  Cases,  207  U.  S.  463. 

The  judgments  will  he  reversed  and  the  cases  remanded  to  the  Court 
of  Claims,  with  directions  to  dismiss  the  petitions  for  want  of 
jurisdiction. 


PACIFIC   STATES   TELEPHONE   V.    OREGON.  99 

PACIFIC  STATES  TELEPHONE  AND  TELEGRAPH  CO. 

V.   OREGON. 

Supreme  Court  of  the  United  States.     1912. 
[223  United  States,  118.]  ^ 

Error  to  the  Supreme  Court  of  the  State  of  Oregon. 

E.  S.  Pillsbury,  with  whom  Oscar  Sutro  was  on  the  brief,  for 
plaintiff  in  error.  Johi  J.  Dye  and  Addison  C.  Harris,  submitted 
a  brief  as  amid  curiae,  by  leave  of  the  court,  on  the  same  side, 

A.  M.  Crawford,  George  Fred  Williams,  and  Jackson  H.  Ralston, 
with  whom  S.  H.  Van  Winkle,  W.  S.  U'Ren,  and  C.  E.  S.  Wood 
were  on  the  brief,  for  defendant  in  error.  A  brief  on  the  same 
side  was  filed  by  George  H.  Shibley,  Director  of  the  American  Bureau 
of  Political  Research  of  People's  Rule  League  of  America,  Robert 
L.  Owen,  Chairman  of  the  National  Committee,  People's  Rule 
League  of  America,  and  J.  Henry  Games  as  counsel  for  the  State 
of  Oregon;  and  a  separate  brief  supporting  the  defendant  in  error 
was  filed  by  George  Fred  Williams  as  counsel  for  the  States  of 
California,  Arkansas,  Colorado,  South  Dakota,  and  Nebraska. 

White,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  case  is  this:  In  1902  Oregon  amended  its  constitution 
(Art.  IV,  §1).  This  amendment  while  retaining  an  existing  clause 
vesting  the  exclusive  legislative  power  in  a  General  Assembly  con- 
sisting of  a  senate  and  house  of  representatives  added  to  that 
provision  the  following:  *'  But  the  people  reserve  to  themselves 
power  to  propose  laws  and  amendments  to  the  constitution  and 
to  enact  or  reject  the  same  at  the  polls,  independent  of  the  legis- 
lative assembly,  and  also  reserve  power  at  their  own  option  to 
approve  or  reject  at  the  polls  any  act  of  the  legislative  assembly." 
Specific  means  for  the  exercise  of  the  power  thus  reserved  was 
contained  in  further  clauses  authorizing  both  the  amendment  of 
the  constitution  and  the  enactment  of  laws  to  be  accomplished 
by  the  method  known  as  the  initiative  and  that  commonly  re- 
ferred to  as  the  referendum.  As  to  the  first,  the  initiative,  it 
suffices  to  say  that  a  stated  number  of  voters  were  given  the  right 
at  any  time  to  secure  a  submission  to  popular  vote  for  approval 
of  any  matter  which  it  was  desired  to  have  enacted  into  law,  and 
providing  that  the  proposition  thus  submitted  when  approved 
by  popular  vote  should  become  the  law  of  the  State,    The  second, 

^  The  reporter's  statement  of  the  point  of  law  involved  has  not  been 
reprinted.  —  Ed, 


100  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

the  referendum,  provided  for  a  reference  to  a  popular  vote,  for 
approval  or  disapproval,  of  any  law  passed  by  the  legislature,  such 
reference  to  take  place  either  as  the  result  of  the  action  of  the 
legislature  itself  or  of  a  petition  filed  for  that  purpose  by  a  specified 
number  of  voters.  .  .  . 

In  1903  (Feb.  24,  1903,  Gen.  Laws  1903,  p.  244)  detailed 
provisions  for  the  carrying  into  effect  of  this  amendment  were 
enacted  by  the  legislature. 

By  resort  to  the  initiative  in  1906  a  law  taxing  certain  classes  of 
corporations  was  submitted,  voted  on  and  promulgated  by  the 
Governor  in  1906  (June  25,  1906,  Gen.  Laws  1907,  p.  7)  as  having 
been  duly  adopted.  By  this  law  telephone  and  telegraph  com- 
panies were  taxed,  by  what  was  qualified  as  an  annual  license, 
two  per  centum  upon  their  gross  revenue  derived  from  business 
done  within  the  State.  Penalties  were  provided  for  non-payment, 
and  methods  were  created  for  enforcing  payment  in  case  of  de- 
linquency. 

The  Pacific  States  Telephone  and  Telegraph  Company,  an 
Oregon  corporation  engaged  in  business  in  that  State,  made  a 
return  of  its  gross  receipts  as  required  by  the  statute  and  was 
accordingly  assessed  two  per  cent  upon  the  amount  of  such  return. 
The  suit  which  is  now  before  us  was  commenced  by  the  State  to 
enforce  payment  of  this  assessment  and  the  statutory  penalties 
for  delinquency.  The  petition  alleged  the  passage  of  the  taxing 
law  by  resort  to  the  initiative,  the  return  made  by  the  corporation, 
the  assessment,  the  duty  to  pay  and  the  failure  to  make  such 
payment. 

The  answer  of  the  corporation  contained  twenty-nine  para- 
graphs. .  .  .  They  all,  in  so  far  as  they  relied  upon  the  Con- 
stitution of  the  United  States,  rested  exclusively  upon  an  alleged 
infirmity  of  the  powers  of  government  of  the  State  begotten  by 
the  incorporation  into  the  state  constitution  of  the  amendment 
concerning  the  initiative  and  the  referendum. 

The  answer  was  demurred  to  as  stating  no  defense.  The  de- 
murrer was  sustained,  and  the  defendant  electing  not  to  plead 
further,  judgment  went  against  it  and  that  judgment  was  affirmed 
by  the  Supreme  Court  of  Oregon.     (53  Oregon,  162.)  .  .  . 

The  assignments  of  error  filed  on  the  allowance  of  the  writ  of 
error  are  numerous.  The  entire  matters  covered  by  each  and  all 
of  them  in  the  argument,  however,  are  reduced  to  six  propositions, 
which  really  amount  to  but  one,  since  they  are  all  based  upon  the 
single  contention  that  the  creation  by  a  State  of  the  power  to 


PACIFIC    STATES   TELEPHONE    V.    OREGON.  101 

legislate  by  the  initiative  and  referendum  causes  the  prior  lawful 
state  government  to  be  bereft  of  its  lawful  character  as  the  result 
of  the  provisions  of  §  4  of  Art.  IV  of  the  Constitution,  that  "  The 
United  States  shall  guarantee  to  every  State  in  this  Union  a 
Republican  Form  of  Governjnent,  and  shall  protect  each  of  them 
against  Invasion;  and  on  Application  of  the  Legislature,  or  of  the 
Executive  (when  the  Legislature  cannot  be  convened),  against 
domestic  Violence."  This  being  the  basis  of  all  the  contentions 
the  case  comes  to  the  single  issue  whether  the  enforcement  of  that 
provision,  because  of  its  political  character,  is  exclusively  com- 
mitted to  Congress  or  is  judicial  in  its  character.  .  .  . 

In  other  words,  the  propositions  each  and  all  proceed  alone 
upon  the  theory  that  the  adoption  of  the  initiative  and  referendum 
destroyed  all  government  republican  in  form  in  Oregon.  This 
being  so,  the  contention,  if  held  to  be  sound,  would  necessarily 
affect  the  validity,  not  only  of  the  particular  statute  which  is 
before  us,  but  of  every  other  statute  passed  in  Oregon  since  the 
adoption  of  the  initiative  and  referendum.  And  indeed  the  prop- 
ositions go  further  than  this,  since  in  their  essence  they  assert  that 
there  is  no  governmental  function,  legislative  or  judicial,  in  Oregon, 
because  it  cannot  be  assumed,  if  the  proposition  be  well  founded, 
that  there  is  at  one  and  the  same  time  one  and  the  same  govern- 
ment which  is  republican  in  form  and  not  of  that  character. 

Before  immediately  considering  the  text  of  §  4  of  Art.  IV,  in 
order  to  uncover  and  give  emphasis  to  the  anomalous  and  destruc- 
tive effects  upon  both  the  state  and  national  governments  which 
the  adoption  of  the  proposition  implies,  as  illustrated  by  what  we 
have  just  said,  let  us  briefly  fix  the  inconceivable  expansion  of  the 
judicial  power  and  the  ruinous  destruction  of  legislative  authority 
in  matters  purely  political  which  would  necessarily  be  occasioned 
by  giving  sanction  to  the  doctrine  which  underlies  and  would  be 
necessarily  involved  in  sustaining  the  propositions  contended  for. 
First.  That  however  perfect  and  absolute  may  be  the  establish- 
ment and  dominion  in  fact  of  a  state  government,  however  com- 
plete may  be  its  participation  in  and  enjoyment  of  all  its  powers 
and  rights  as  a  member  of  the  national  Government,  and  however 
all  the  departments  of  that  Goverrmient  may  recognize  such  state 
government,  nevertheless  every  citizen  of  such  State  or  person 
subject  to  taxation  therein,  or  owing  any  duty  to  the  established 
government,  may  be  heard,  for  the  purpose  of  defeating  the  pay- 
ment of  such  taxes  or  avoiding  the  discharge  of  such  duty,  to 
assail  in  a  court  of  justice  the  rightful  existence  of  the  State. 


102  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

Second  As  a  result,  it  becomes  the  duty  of  the  courts  of  the 
United  States,  where  such  a  claim  is  made,  to  examine  as  a  jus- 
ticiable issue  the  contention  as  to  the  illegal  existence  of  a  State 
and  if  such  contention  be  thought  well  founded  to  disregard  the 
existence  in  fact  of  the  State,  of  its  recognition  by  all  of  the  de- 
partments of  the  Federal  Government,  and  practically  award  a 
decree  absolving  from  all  obligation  to  contribute  to  the  support 
of  or  obey  the  laws  of  such  established  state  government.  And 
as  a  consequence  of  the  existence  of  such  judicial  authority  a  power 
in  the  judiciary  must  be  implied,  unless  it  be  that  anarchy  is  to 
ensue,  to  build  by  judicial  action  upon  the  ruins  of  the  previously 
established  government  a  new  one,  a  right  which  by  its  very 
terms  also  implies  the  power  to  control  the  legislative  department 
of  the  Government  of  the  United  States  in  the  recognition  of  such 
new  government  and  the  admission  of  representatives  therefrom, 
as  well  as  to  strip  the  executive  department  of  that  government 
of  its  otherwise  lawful  and  discretionary  authority. 

Do  the  provisions  of  §  4,  Art.  IV,  bring  about  these  strange, 
far-reaching  and  injurious  results  ?  That  is  to  say,  do  the  pro- 
visions of  that  Article  obliterate  the  division  between  judicial 
authority  and  legislative  power  upon  which  the  Constitution 
rests  ?  In  other  words,  do  they  authorize  the  judiciary  to  sub- 
stitute its  judgment  as  to  a  matter  purely  political  for  the  judg- 
ment of  Congress  on  a  subject  committed  to  it  and  thus  overthrow 
the  Constitution  upon  the  ground  that  thereby  the  guarantee  to 
the  States  of  a  government  republican  in  form  may  be  secured, 
a  conception  which  after  all  rests  upon  the  assumption  that  the 
States  are  to  be  guaranteed  a  government  republican  in  form  by 
destroying  the  very  existence  of  a  government  republican  in  form 
in  the  Nation. 

We  shall  not  stop  to  consider  the  text  to  point  out  how  absolutely 
barren  it  is  of  support  for  the  contentions  sought  to  be  based  upon 
it,  since  the  repugnancy  of  those  contentions  to  the  letter  and 
spirit  of  that  text  is  so  conclusively  established  by  prior  decisions  of 
this  court  as  to  cause  the  matter  to  be  absolutely  foreclosed.  .  .  .^ 

It  is  indeed  a  singular  misconception  of  the  nature  and  character 
of  our  constitutional  system  of  government  to  suggest  that  the 
settled  distinction  .  .  .  between  judicial  authority  over  justici- 
able controversies  and  legislative  power  as  to  purely  political 
questions  tends  to  destroy  the  duty  of  the  judiciary  in  proper 

^  The  passage  here  omitted  dealt  with  Luther  v.  Borden,  ante,  p.  46  (1848), 
and  Taylor  v.  Beckham,  No.  1,  178  U.  S.  548  (1900).  —  Ed. 


PACIFIC   STATES   TELEPHONE   V.    OREGON.  103 

cases  to  enforce  the  Constitution.  The  suggestion  but  results 
from  failing  to  distinguish  between  things  which  are  widely  differ- 
ent, that  is,  the  legislative  duty  to  determine  the  political  questions 
involved  in  deciding  whether  a  state  government  republican  in 
form  exists,  and  the  judicial  power  and  ever-present  duty  whenever 
it  becomes  necessary  in  a  controversy  properly  submitted  to 
enforce  and  uphold  the  applicable  provisions  of  the  Constitution 
as  to  each  and  every  exercise  of  governmental  power. 

How  better  can  the  broad  lines  which  distinguish  these  two 
subjects  be  pointed  out  than  by  considering  the  character  of  the 
defense  in  this  very  case  ?  The  defendant  company  does  not 
contend  here  that  it  could  not  have  been  required  to  pay  a  license 
tax.  It  does  not  assert  that  it  was  denied  an  opportunity  to  be 
heard  as  to  the  amount  for  which  it  was  taxed,  or  that  there  was 
anything  inhering  in  the  tax  or  involved  intrinsically  in  the  law 
which  violated  any  of  its  constitutional  rights.  If  such  questions 
had  been  raised  they  would  have  been  justiciable,  and  therefore 
would  have  required  the  calling  into  operation  of  judicial  power. 
Instead,  however,  of  doing  any  of  these  things,  the  attack  on  the 
statute  here  made  is  of  a  wholly  different  character.  Its  essen- 
tially political  nature  is  at  once  made  manifest  by  understanding 
that  the  assault  which  the  contention  here  advanced  makes  is  not 
on  the  tax  as  a  tax,  but  on  the  State  as  a  State.  It  is  addressed 
to  the  framework  and  political  character  of  the  government  by 
which  the  statute  levying  the  tax  was  passed.  It  is  the  govern- 
ment, the  political  entity,  which  (reducing  the  case  to  its  essence) 
is  called  to  the  bar  of  this  court,  not  for  the  purpose  of  testing 
judicially  some  exercise  of  power  assailed,  on  the  ground  that  its 
exertion  has  injuriously  affected  the  rights  of  an  individual  because 
of  repugnancy  to  some  constitutional  limitation,  but  to  demand 
of  the  State  that  it  establish  its  right  to  exist  as  a  State,  repub- 
lican in  form. 

As  the  issues  presented,  in  their  very  essence,  are,  and  have  long 
since  by  this  court  been,  definitely  determined  to  be  political  and 
governmental,  and  embraced  within  the  scope  of  the  powers  con- 
ferred upon  Congress,  and  not  therefore  within  the  reach  of  judi- 
cial power,  it  follows  that  the  case  presented  is  not  within  our 
jurisdiction,  and  the  writ  of  error  must  therefore  be,  and  it  is, 
dismissed  for  want  of  jurisdiction. 

Dismissed  for  want  of  jurisdiction. 


CHAPTER  II. 

FEDERAL  GOVERNMENT:  THE  NATION  AND 
THE  STATES. 

CHISHOLM,  Executor,  v.  GEORGIA. 
Supreme  Court  of  the  United  States.     1793. 

[2  Dallas,  419.]  ^ 

Original  action  of  assumpsit. 

The  Marshal  for  the  District  of  Georgia  having  made  return  of 
service  on  the  Governor  of  Georgia  and  on  the  Attorney  General 
of  the  State,  the  counsel  for  the  plaintiff,  Randolph,  Attorney 
General  of  the  United  States,  moved  that  "  unless  the  State  of 
Georgia  shall,  after  reasonable  previous  notice  of  this  motion, 
cause  an  appearance  to  be  entered  .  .  .  judgment  shall  be  entered 
against  the  said  State,  and  a  writ  of  inquiry  of  damages  shall  be 
awarded." 

And  now  Ingersoll  and  Dallas  presented  a  written  remonstrance 
on  behalf  of  the  State  against  the  exercise  of  jurisdiction,  but  de- 
clined arguing  the  question. 

Randolph,  for  the  plaintiff. 

Iredell,  J.  .  .  .  The  particular  question  then  before  the 
court  is,  will  an  action  of  assumpsit  lie  against  a  State  ?  .  .  .  The 
Attorney  General  must  know  that  in  England  certain  proceedings 
not  inconsistent  with  the  sovereignty  may  take  place  against  the 
Crown,  but  that  an  action  of  assumpsit  will  not  lie.  .  .  .  The 
Attorney  General  himself  has  taken  some  pains  to  show  that  no 
action  whatever  is  maintainable  against  the  United  States.  .  .  . 

Neither  in  the  State  now  in  question  nor  in  any  other  in  the 
Union  any  particular  legislative  mode,  authorizing  a  compulsory 
suit  for  the  recovery  of  money  against  a  State,  was  in  being  either 
when  the  Constitution  was  adopted  or  at  the  time  the  judicial 
act  was  passed.  .  .  . 

The  only  principles  of  law,  then,  that  can  be  regarded,  are  those 
common  to  all  the  States.  I  know  of  none  such,  which  can  affect 
this  case,  but  those  that  are  derived  from  what  is  properly  termed 

1  An  abbreviated  statement  has  been  presented.  —  Ed. 

104 


CHISHOLM   V.    GEORGIA.  105 

"  the  common  law,"  a  law  which  I  presume  is  the  ground-work  of 
the  laws  in  every  State  in  the  Union,  and  which  I  consider,  so  far 
as  it  is  applicable  to  the  peculiar  circumstances  of  the  country,  and 
where  no  special  act  of  Legislation  controls  it,  to  be  in  force  in 
each  State,  as  it  existed  in  England  {unaltered  by  any  statute)  at  the 
time  of  the  first  settlement  of  the  country.  The  statutes  of  England 
that  are  in  force  in  America  differ  perhaps  in  all  the  States;  and, 
therefore,  it  is  probable  the  common  law  in  each  is  in  some  respects 
different.  But  it  is  certain  that  in  regard  to  any  common  law 
principle  which  can  influence  the  question  before  us  no  alteration 
has  been  made  by  any  statute,  which  could  occasion  the  least  mate- 
rial difference,  or  have  any  partial  effect.  No  other  part  of  the 
common  law  of  England,  it  appears  to  me,  can  have  any  reference 
to  this  subject,  but  that  part  of  it  which  prescribes  remedies  against 
the  crown.  Every  State  in  the  Union  in  every  instance  where  its 
sovereignty  has  not  been  delegated  to  the  United  States,  I  consider 
to  be  as  completely  sovereign,  as  the  United  States  are  in  respect 
to  the  powers  surrendered.  The  United  States  are  sovereign  as  to 
all  the  powers  of  Government  actually  surrendered:  Each  State 
in  the  Union  is  sovereign  as  to  all  the  powers  reserved.  It  must 
necessarily  be  so,  because  the  United  States  have  no  claim  to  any 
authority  but  such  as  the  States  have  surrendered  to  thera:  Of  course 
the  part  not  surrendered  must  remain  as  it  did  before.  The  powers 
of  the  general  Government,  either  of  a  Legislative  or  Executive 
nature,  or  which  particularly  concerns  Treaties  with  Foreign 
Powers,  do  for  the  most  part  (if  not  wholly)  affect  individuals, 
and  not  States:  They  require  no  aid  from  any  State  authority. 
This  is  the  great  leading  distinction  between  the  old  articles  of 
confederation,  and  the  present  constitution.  .  .  . 

If  therefore,  no  new  remedy  be  provided  (as  plainly  is  the  case), 
and  consequently  we  have  no  other  rule  to  govern  us  but  the  prin- 
ciples of  the  pre-existent  laws,  which  must  remain  in  force  till  su- 
perseded by  others,  then  it  is  incumbent  upon  us  to  inquire 
whether  previous  to  the  adoption  of  the  Constitution  (which 
period,  or  the  period  of  passing  the  law,  in  respect  to  the  object  of 
this  inquiry,  is  perfectly  equal)  an  action  of  the  nature  like  this 
before  the  Court  could  have  been  maintained  against  one  of  the 
States  in  the  Union  upon  the  principles  of  the  common  law,  which 
I  have  shown  to  be  alone  applicable.  If  it  could,  I  think  it  is 
now  maintainable  here :  If  it  could  not,  I  think,  as  the  law  stands 
at  present,  it  is  not  maintainable;  whatever  opinion  may  be  en- 
tertained, upon  the  construction  of  the  Constitution,  as  to  the 


106  FEDERAL   GOVERNMENT. 

power  of  Congress  to  authorise  such  a  one.  Now  I  presume  it  will 
not  be  denied  that  in  every  State  in  the  Union,  previous  to  the 
adoption  of  the  Constitution,  the  only  common  law  principles  in 
regard  to  suits  that  were  in  any  manner  admissible  in  respect  to 
claims  against  the  State  were  those  which  in  England  apply  to 
claims  against  the  crown;  there  being  certainly  no  other  principles 
of  the  common  law  which,  previous  to  the  adoption  of  this  Con- 
stitution could,  in  any  manner,  or  upon  any  color,  apply  to  the 
case  of  a  claim  against  a  State  in  its  own  Courts,  where  it  was 
solely  and  completely  sovereign  in  respect  to  such  cases  at  least. 
Whether  that  remedy  was  strictly  applicable  or  not,  still  I  appre- 
hend there  was  no  other.  The  only  remedy  in  a  case  like  that 
before  the  Court,  by  which,  by  any  possibility,  a  suit  can  be  main- 
tained against  the  crown  in  England,  or  could  be  at  any  period 
from  which  the  common  law,  as  in  force  in  America,  could  be  de- 
rived, I  believe  is  that  which  is  called  a  Petition  of  right.  .  .  . 

In  England  even  in  case  of  a  private  debt  contracted  by  the 
King,  in  his  own  person,  there  is  no  remedy  but  by  petition,  which 
must  receive  his  express  sanction,  otherwise  there  can  be  no  pro- 
ceeding upon  it.  If  the  debt  contracted  be  avowedly  for  the  pub- 
lic uses  of  Government,  it  is  at  least  doubtful  whether  that  remedy 
will  lie,  and  if  it  will,  it  remains  afterwards  in  the  power  of  Parlia- 
ment to  provide  for  it  or  not  among  the  current  supplies  of  the 
year.  .  .  . 

I  have  now,  I  think,  established  the  following,  particulars.  — 
1st.  That  the  Constitution,  so  far  as  it  respects  the  judicial  au- 
thority, can  only  be  carried  into  effect  by  acts  of  the  Legislature 
appointing  Courts,  and  prescribing  their  methods  of  proceeding. 
2d.  That  Congress  has  provided  no  new  law  in  regard  to  this  case, 
but  expressly  referred  us  to  the  old.  3d.  That  there  are  no  prin- 
ciples of  the  old  law,  to  which  we  must  have  recourse,  that  in  any 
manner  authorise  the  present  suit,  either  by  precedent  or  by  anal- 
ogy. The  consequence  of  which,  in  my  opinion,  clearly  is  that 
the  suit  in  question  cannot  be  maintained,  nor,  of  course,  the 
motion  made  upon  it  be  complied  with.  .  .  . 

My  opinion  being,  that  even  if  the  Constitution  would  admit  of 
the  exercise  of  such  a  power,  a  new  law  is  necessary  for  the  purpose, 
since  no  part  of  the  existing  law  applies,  this  alone  is  sufficient  to 
justify  my  determination  in  the  present  case.  So  much,  however, 
has  been  said  on  the  Constitution,  that  it  may  not  be  improper 
to  intimate  that  my  present  opinion  is  strongly  against  any  con- 
struction of  it,  which  will  admit,  under  any  circumstances,  a  com- 


CHISHOLM    V.    GEORGIA.  107 

pulsive  suit  against  a  State  for  the  recovery  of  money.  I  think 
every  word  in  the  Constitution  may  have  its  full  effect  without 
involving  this  consequence,  and  that  nothing  but  express  words, 
or  an  insurmountable  implication  (neither  of  which  I  consider  can 
be  found  in  this  case)  would  authorise  the  deduction  of  so  high  a 
power.  .  .  . 

Blair,  J.  .  .  .  The  Constitution  of  the  United  States  is  the 
only  fountain  from  which  I  shall  draw;  the  only  authority  to  which 
I  shall  appeal.  Whatever  be  the  true  language  of  that,  it  is  obli- 
gatory upon  every  member  of  the  Union ;  for,  no  State  could  have 
become  a  member,  but  by  an  adoption  of  it  by  the  people  of  that 
State.  What  then  do  we  find  there  requiring  the  submission  of 
individual  States  to  the  judicial  authority  of  the  United  States  ? 
This  js  expressly  extended,  among  other  things,  to  controversies 
between  a  State  and  citizens  of  another  State.  Is  then  the  case 
before  us  one  of  that  description  ?  Undoubtedly  it  is,  unless 
it  may  be  a  sufficient  denial  to  say  that  it  is  a  controversy  be- 
tween a  citizen  of  one  State  and  another  State.  Can  this  change 
of  order  be  an  essential  change  in  the  thing  intended  ?  And  is 
this  alone  a  sufficient  ground  from  which  to  conclude  that  the 
jurisdiction  of  this  Court  reaches  the  case  where  a  State  is  Plain- 
tiff, but  not  where  it  is  Defendant  ?  In  this  latter  case,  should 
any  man  be  asked,  whether  it  was  not  a  controversy  between  a 
State  and  citizen  of  another  State,  must  not  the  answer  be  in  the 
affirmative  ?  A  dispute  between  A.  and  B.  is  surely  a  dispute 
between  B.  and  A.  Both  cases,  I  have  no  doubt,  were  intended; 
and  probably  the  State  was  first  named,  in  respect  to  the  dignity 
of  a  State.  .  .  . 

If  a  State  may  be  brought  before  this  Court,  as  a  Defendant, 
I  see  no  reason  for  confining  the  Plaintiff  to  proceed  by  way  of 
petition;  indeed  there  would  even  seem  to  be  an  impropriety  in 
proceeding  in  that  mode.  When  sovereigns  are  sued  in  their  own 
Courts,  such  a  method  may  have  been  established  as  the  most 
respectful  form  of  demand :  but  we  are  not  now  in  a  State  Court ; 
and  if  sovereignty  be  an  exemption  from  suit  in  any  other  than 
the  sovereign's  own  Courts,  it  follows  that  when  a  State,  by  adopt- 
ing the  Constitution,  has  agreed  to  be  amenable  to  the  judicial 
power  of  the  United  States,  she  has,  in  that  respect,  given  up  her 
right  of  sovereignty.  .  •  . 

Farther  opportunity  of  appearing  to  defend  the  suit  ought  to 
be  given.  The  conditional  order  moved  for  .  .  .  seems  to  me  to 
be  a  very  proper  one.  .  .  . 


108  FEDERAL   GOVERNMENT. 

Wilson,  J.  .  .  .  To  the  Constitution  of  the  United  States  the 
term  sovereign  is  totally  unknown.  There  is  but  one  place  where 
it  could  have  been  used  with  propriety.  But,  even  in  that  place 
it  would  not,  perhaps,  have  comported  with  the  delicacy  of  those 
who  ordained  and  established  that  Constitution.  They  might 
have  announced  themselves  "  sovereign  "  people  of  the  United 
States.  .  .  . 

Our  national  scene  opens  with  the  most  magnificent  object 
which  the  nation  could  present.  "  The  people  of  the  United 
States  "  are  the  first  personages  introduced.  Who  were  those 
people  ?  They  were  the  citizens  of  thirteen  States,  each  of  which 
had  a  separate  Constitution  and  Govermnent,  and  all  of  which 
were  connected  together  by  articles  of  confederation.  To  the 
purposes  of  public  strength  and  felicity,  that  confederacy  was 
totally  inadequate.  A  requisition  on  the  several  States  termi- 
nated its  Legislative  authority :  Executive  or  Judicial  authority 
it  had  none.  In  order  therefore,  to  form  a  more  perfect  union, 
to  establish  justice,  to  ensure  domestic  tranquility,  to  provide  for 
common  defence,  and  to  secure  the  blessings  of  liberty,  those 
people,  among  whom  were  the  people  of  Georgia,  ordained  and 
established  the  present  Constitution.  By  that  Constitution  leg- 
islative power  is  vested,  executive  power  is  vested,  judicial  power 
is  vested. 

The  question  now  opens  fairly  to  our  view,  could  the  people  of 
those  States,  among  whom  were  those  of  Georgia,  bind  those 
States,  and  Georgia  among  the  others,  by  the  legislative,  execu- 
tive, and  judicial  power  so  vested  ?  If  the  principles,  on  which 
I  have  founded  myself,  are  just  and  true;  this  question  must  un- 
avoidably receive  an  affirmative  answer.  If  those  States  were 
the  work  of  those  people;  those  people,  and  that  I  may  apply  the 
case  closely,  the  people  of  Georgia,  in  particular,  could  alter,  as 
they  pleased,  their  former  work :  To  any  given  degree,  they  could 
diminish  as  well  as  enlarge  it.  Any  or  all  of  the  former  State 
powers,  they  could  extinguish  or  transfer.  The  inference  which 
necessarily  results  is  that  the  Constitution  ordained  and  estab- 
lished by  those  people,  and,  still  closely  to  apply  the  case,  in 
particular  by  the  people  of  Georgia,  could  vest  jurisdiction  or 
judicial  power  over  those  States  and  over  the  State  of  Georgia  in 
particular. 

The  next  question  under  this  head  is  —  Has  the  Constitution 
done;  so  ?  .  .  . 


CHISHOLM   V.    GEORGIA.  109 

"  The  judicial  power  of  the  United  States  shall  extend  to  con- 
troversies between  two  States."  ^  Two  States  are  supposed  to  have 
a  controversy  between  them:  This  controversy  is  supposed  to  be 
brought  before  those  vested  with  the  judicial  power  of  the  United 
States:  Can  the  most  consummate  degree  of  professional  inge- 
nuity devise  a  mode  by  which  this  "  controversy  between  two 
States  "  can  be  brought  before  a  Court  of  law;  and  yet  neither  of 
those  States  be  a  Defendant  ?  "  The  judicial  power  of  the  United 
States  shall  extend  to  controversies  between  a  State  and  citizens 
of  another  State."  Could  the  strictest  legal  language;  could  even 
that  language,  which  is  peculiarly  appropriated  to  an  art,  deemed, 
by  a  great  master,  to  be  one  of  the  most  honorable,  laudable,  and 
profitable  things  in  our  law;  could  this  strict  and  appropriated 
language,  describe,  with  more  precise  accuracy,  the  cause  now 
depending  before  the  tribunal  ?  Causes,  and  not  parties  to 
causes,  are  weighed  by  justice,  in  her  equal  scales:  On  the  former 
solely,  her  attention  is  fixed :  To  the  latter,  she  is,  as  she  is  painted, 
blind.  .  .  . 

The  .  .  .  inference  is  that  the  action  lies. 

Gushing,  J.  .  .  .  The  point  turns  not  upon  the  law  or  prac- 
tice of  England,  although  perhaps  it  may  be  in  some  measure 
elucidated  thereby,  nor  upon  the  law  of  any  other  country  what- 
ever; but  upon  the  Constitution  established  by  the  people  of  the 
United  States;  and  particularly  upon  the  extent  of  powers  given 
to  the  Federal  Judiciary  in  the  2d  section  of  the  3d  article' of  the 
Constitution.  .  .  .  The  judicial  power,  then,  is  expressly  ex- 
tended to  "  controversies  between  a  State  and  citizens  of  another 
State."  When  a  citizen  makes  a  demand  against  a  State,  of  which 
he  is  not  a  citizen,  it  is  as  really  a  controversy  between  a  State  and 
a  citizen  of  another  State,  as  if  such  State  made  a  demand  against 
such  citizen.  The  case,  then,  seems  clearly  to  fall  within  the  letter 
of  the  Constitution.  It  may  be  suggested  that  it  could  not  be 
intended  to  subject  a  State  to  be  a  Defendant,  because  it  would 
affect  the  sovereignty  of  States.  If  that  be  the  case,  what  shall 
we  do  with  the  immediate  preceding  clause;  "  controversies  be- 
tween two  or  more  States,"  where  a  State  must  of  necessity  be 
Defendant  ?  If  it  was  not  the  intent,  in  the  very  next  clause 
also,  that  a  State  might  be  made  Defendant,  why  was  it  so  ex- 
pressed as  naturally  to  lead  to  and  comprehend  that  idea  ?  Why 
was  not  an  exception  made  if  one  was  intended  ?  .  .  . 

1  Art.  Ill,  sect.  2.  —  Rep. 


110  FEDERAL   GOVERNMENT. 

I  am  of  opinion  that  the  Constitution  warrants  a  suit  against  a 
State  by  an  individual  citizen  of  another  State.  .  .  . 

I  think  assumpsit  will  lie,  if  any  suit;  provided  a  State  is  capable 
of  contracting.  .  .  . 

Jay,  C.  J.  .  .  .  It  is  politic,  wise,  and  good,  that,  not  only  the 
controversies  in  which  a  State  is  Plaintiff,  but  also  those  in  which 
a  State  is  Defendant,  should  be  settled;  both  cases,  therefore,  are 
within  the  reason  of  the  remedy;  and  ought  to  be  so  adjudged, 
unless  the  obvious,  plain,  and  Uteral  sense  of  the  words  forbid  it. 
If  we  attend  to  the  words,  we  find  them  to  be  express,  positive, 
free  from  ambiguity,  and  without  room  for  such  implied  expres- 
sions: "  The  judicial  power  of  the  United  States  shall  extend  to 
controversies  between  a  state  and  citizens  of  another  state."  If 
the  Constitution  really  meant  to  extend  these  powers  only  to 
those  controversies  in  which  a  State  might  be  Plaintiff,  to  the 
exclusion  of  those  in  which  citizens  had  demands  against  a  State, 
it  is  inconceivable  that  it  should  have  attempted  to  convey  that 
meaning  in  words,  not  only  so  incompetent,  but  also  repugnant 
to  it;  if  it  meant  to  exclude  a  certain  class  of  these  controversies, 
why  were  they  not  expressly  excepted;  on  the  contrary,  not  even 
an  intimation  of  such  intention  appears  in  any  part  of  the  Con- 
stitution. It  cannot  be  pretended  that  where  citizens  urge  and 
insist  upon  demands  against  a  State,  which  the  State  refuses  to 
admit  and  comply  with,  that  there  is  no  controversy  between 
them.  If  it  is  a  controversy  between  them,  then  it  clearly  falls 
not  only  within  the  spirit,  but  the  very  words  of  the  Constitution. 
What  is  it  to  the  cause  of  justice,  and  how  can  it  affect  the  defini- 
tion of  the  word  controversy,  whether  the  demands  which  cause 
the  dispute  are  made  by  a  State  against  citizens  of  another  State, 
or  by  the  latter  against  the  former  ?  .  .  . 

Ordered  that  unless  the  said  State  shall  .  .  .  appear,  .  .  .  judg^ 
ment  hy  default  shall  be  entered.  ^  .  .  . 

»  See  Hans  v.  Louisiana,  134  U.  S.  1,  11-12,  21  (1890).  —  Ed. 


HOLLINGSWOR^H   V.    VIRGINIA-  111 

HOLLINGSWORTH  v.  VIRGINIA. 
Supreme  Court  of  the  United  States.     1798. 

[3  Dallas,  378.] 

The  decision  of  the  Court,  in  the  case  of  Chisholm,  Ex' or,  versus 
Georgia  (2  Dall.  Rep.  419)  produced  a  proposition  in  Congress,  for 
amending  the  Constitution  of  the  United  States,  according  to  the 
following  terms: 

"  The  Judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state,  or 
by  citizens  or  subjects  of  any  foreign  state." 

The  proposition  being  now  adopted  by  the  constitutional  num- 
ber of  States,  Lee,  Attorney  General,  submitted  this  question  to  the 
Court,  —  Whether  the  Amendment  did,  or  did  not,  supersede  all 
suits  depending,  as  well  as  prevent  the  institution  of  new  suits, 
against  any  one  of  the  United  States,  by  citizens  of  another  State  ? 

W.  Tilghman  and  Rawle  argued  in  the  negative. 

Lee,  Attorney  General.  The  case  before  the  court  is  that  of  a 
suit  against  a  state,  in  which  the  Defendant  has  never  entered  an 
appearance:  but  the  amendment  is  equally  operative  in  all  the 
cases  against  states,  where  there  has  been  an  appearance,  or  even 
where  there  have  been  a  trial  and  judgment.  An  amendment  of 
the  Constitution,  and  the  repeal  of  a  law,  are  not,  manifestly,  on 
the  same  footing:  Nor  can  an  explanatory  law  be  expounded  by 
foreign  matter.  The  amendment,  in  the  present  instance,  is  merely 
explanatory,  in  substance,  as  well  as  language.  From  the  mo- 
ment those  who  gave  the  power  to  sue  a  state  revoked  and  an- 
nulled it,  the  power  ceased  to  be  a  part  of  the  Constitution;  and 
if  it  does  not  exist  there,  it  cannot  in  any  degree  be  found,  or  exer- 
cised, elsewhere.  .  .  . 

The  Court,  on  the  day  succeeding  the  argument,  delivered  an 
unanimous  opinion,  that  the  amendment  being  constitutionally 
adopted,  there  could  not  be  exercised  any  jurisdiction,  in  any  case, 
past  or  future,  in  which  a  state  was  sued  by  the  citizens  of  another 
state,  or  by  citizens,  or  subjects,  of  any  foreign  state. 


112  FEDERAL   GOVERNMENT. 


MARTIN,  Heir  at  Law  and  Devisee  of  Fairfax,  v.  HUNTER'S 

Lessee. 

Supreme  Court  of  the  United  States.     1816. 

[1  Wheaton,  304.]  i 

Error  to  the  Court  of  Appeals  of  Virginia. 

The  original  action  was  ejectment,  involving  construction  of 
treaties  between  Great  Britain  and  the  United  States,  in  1783 
and  1794;  and  the  judgment  of  the  Court  of  Appeals  was  adverse 
to  the  rights  claimed  under  the  treaties.  The  Federal  Judiciary 
Act  of  1789,  sect.  25,  enacted,  among  other  things,  that,  if  there  is 
a  final  judgment  or  decree  in  any  suit  in  the  highest  available 
court  of  law  or  equity  of  a  State,  either  in  a  cause  where  is  drawn 
in  question  the  validity  of  a  treaty  or  statute  of,  or  an  authority 
exercised  under,  the  United  States,  and  the  decision  is  against 
validity,  or  in  a  cause  where  is  drawn  in  question  the  validity  of  a 
statute  of,  or  an  authority  exercised  under,  any  State,  on  the  ground 
of  repugnancy  to  the  Constitution,  treaties,  or  laws  of  the  United 
States,  and  the  decision  is  in  favor  of  validity,  then,  in  either  such 
case,  such  final  judgment  or  decree  may  be  re-examined  and  re- 
versed or  affirmed  in  the  Supreme  Court  of  the  United  States, 
upon  a  writ  of  error,  and  the  Supreme  Court  may  remand  the 
cause  for  a  final  decision  or,  the  cause  having  already  been  once 
remanded,  may  proceed  to  a  final  decision  and  award  execution. 
Under  such  a  writ  of  error  from  the  Supreme  Court  of  the  United 
States,  a  mandate  was  issued,  as  reported  in  Fairfax's  Devisee  v. 
Hunter's  Lessee,  7  Cranch,  603  (1813),  requiring  the  judgment 
of  the  Court  of  Appeals  of  Virginia  to  be  reversed.  The  judgment 
rendered  by  the  Court  of  Appeals  on  the  mandate  was:  "  The 
court  is  unanimously  of  opinion,  that  the  appellate  power  of  the 
Supreme  Court  of  the  United  States  does  not  extend  to  this  court, 
under  a  sound  construction  of  the  Constitution  of  the  United 
States;  that  so  much  of  the  25th  section  of  the  Act  of  Congress 
to  establish  the  Judicial  Courts  of  the  United  States  as  extends 
the  appellate  jurisdiction  of  the  Supreme  Court  to  this  court  is  not 
in  pursuance  of  the  Constitution  of  the  United  States;  that  the  writ 
of  error,  in  this  cause,  was  improvidently  allowed,  under  the 
authority  of  that  Act;  that  the  proceedings  thereon  in  the  Su- 
preme Court  were  coram  non  judice,  in  relation  to  this  court,  and 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


MARTIN   V.    hunter's   LESSEE.  113 

that  obedience  to  its  mandate  be  declined  by  this  court."  There- 
upon came  the  present  writ  of  error. 

Jones,  for  the  plaintiffs  in  error. 

Tucker  and  Dexter,  contra. 

Story,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  Constitution  of  the  United  States  was  ordained  and  estab- 
lished, not  by  the  states  in  their  sovereign  capacities,  but  emphat- 
ically, as  the  preamble  of  the  Constitution  declares,  by  "  the  people 
of  the  United  States."  There  can  be  no  doubt  that  it  was  com- 
petent to  the  people  to  invest  the  general  government  with  all  the 
powers  which  they  might  deem  proper  and  necessary ;  to  extend 
or  restrain  these  powers  according  to  their  own  good  pleasure,  and 
to  give  them  a  paramount  and  supreme  authority.  As  little  doubt 
can  there  be,  that  the  people  had  a  right  to  prohibit  to  the  states 
the  exercise  of  any  powers  which  were,  in  their  judgment,  incom- 
patible with  the  objects  of  the  general  compact;  to  make  the 
powers  of  the  state  governments,  in  given  cases,  subordinate  to 
those  of  the  nation,  or  to  reserve  to  themselves  those  sovereign 
authorities  which  they  might  not  choose  to  delegate  to  either.  .  .  . 

With  these  principles  in  view,  principles  in  respect  to  which  no 
difference  of  opinion  ought  to  be  indulged,  let  us  now  proceed  to 
the  interpretation  of  the  Constitution,  so  far  as  regards  the  great 
points  in  controversy. 

The  third  article  of  the  Constitution  is  that  which  must  princi- 
pally attract  our  attention.  .  .  . 

The  object  of  the  Constitution  was  to  establish  three  great  de- 
partments of  government;  the  legislative,  the  executive,  and  the 
judicial  departments.  The  first  was  to  pass  laws,  the  second  to 
approve  and  execute  them,  and  the  third  to  expound  and  enforce 
them.  Without  the  latter,  it  would  be  impossible  to  carry  into 
effect  some  of  the  express  provisions  of  the  Constitution.  .  .  . 

The  judicial  power  shall  extend  to  all  the  cases  enumerated  in 
the  Constitution.  As  the  mode  is  not  limited,  it  may  extend  to  all 
such  cases,  in  any  form,  in  which  judicial  power  may  be  exercised. 
It  may,  therefore  extend  to  them  in  the  shape  of  the  original  or 
appellate  jurisdiction,  or  both;  for  there  is  nothing  in  the  nature 
of  the  cases  which  binds  to  the  exercise  of  the  one  in  preference  to 
the  other.  .  .  . 

This  leads  us  to  the  consideration  of  the  great  question  as  to  the 
nature  and  extent  of  the  appellate  jurisdiction  of  the  United 
States.  .  .  .  Appellate  jurisdiction  is  given  by  the  Constitution 
to  the  supreme  court  in  all  cases  where  it  has  not  original  juris- 


114  FEDERAL   GOVERNMENT. 

diction;  subject,  however,  to  such  exceptions  and  regulations  as 
congress  may  prescribe.  It  is,  therefore,  capable  of  embracing 
every  case  enumerated  in  the  Constitution,  which  is  not  exclusively 
to  be  decided  by  way  of  original  jurisdiction.  But  the  exercise  of 
appellate  jurisdiction  is  far  from  being  limited  by  the  terms  of  the 
Constitution  to  the  supreme  court.  There  can  be  no  doubt  that 
congress  may  create  a  succession  of  inferior  tribunals,  in  each  of 
which  it  may  vest  appellate  as  well  as  original  jurisdiction.  .  .  . 

As,  then,  by  the  terms  of  the  Constitution,  the  appellate  juris- 
diction is  not  limited  as  to  the  supreme  court,  as  and  to  this  court 
it  may  be  exercised  in  all  other  cases  than  those  of  which  it  has 
original  cognizance,  what  is  there  to  restrain  its  exercise  over  state 
tribunals  in  the  enumerated  cases  ?  The  appellate  power  is  not 
limited  by  the  terms  of  the  third  article  to  any  particular  courts. 
The  words  are,  "  the  judicial  power  (which  includes  appellate 
power)  shall  extend  to  all  cases,"  &c.,  and  "  in  all  other  cases 
before  mentioned  the  supreme  court  shall  have  appellate  juris- 
diction." It  is  the  case,  then,  and  not  the  court,  that  gives  the 
jurisdiction.  ... 

It  is  plain  that  the  framers  of  the  Constitution  did  contemplate 
that  cases  within  the  judicial  cognizance  of  the  United  States  not 
only  might  but  would  arise  in  the  state  courts,  in  the  exercise  of 
their  ordinary  jurisdiction.  With  this  view  the  sixth  article  de- 
clares, that  "  this  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every  state 
shall  be  bound  thereby,  any  thing  in  the  constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding."  It  is  obvious  that 
this  obligation  is  imperative  upon  the  state  judges  in  their  official, 
and  not  merely  in  their  private  capacities.  From  the  very  nature 
of  their  judicial  duties  they  would  be  called  upon  to  pronounce  the 
law  applicable  to  the  case  in  judgment.  They  were  not  to  decide 
merely  according  to  the  laws  or  constitution  of  the  state,  but 
according  to  the  Constitution,  laws  and  treaties  of  the  United 
States  —  "  the  supreme  law  of  the  land."  .  .  . 

It  must,  therefore,  be  conceded  that  the  Constitution  not  only 
contemplated,  but  meant  to  provide  for  cases  within  the  scope  of 
the  judicial  power  of  the  United  States,  which  might  yet  depend 
before  state  tribunals.  It  was  foreseen  that  in  the  exercise  of 
their  ordinary  jurisdiction,  state  courts  would  incidentally  take 
cognizance  of  cases  arising  under  the  Constitution,  the  laws,  and 


MARTIN   V.    hunter's    LESSEE.  115 

treaties  of  the  United  States.  Yet  to  all  these  cases  the  judicial 
power,  by  the  very  terms  of  the  Constitution,  is  to  extend.  It 
cannot  extend  by  original  jurisdiction  if  that  was  already  right- 
fully and  exclusively  attached  in  the  state  courts,  which  (as  has 
been  already  shown)  may  occur;  it  must,  therefore,  extend  by 
appellate  jurisdiction,  or  not  at  all.  It  would  seem  to  follow  that 
the  appellate  power  of  the  United  States  must,  in  such  cases,  ex- 
tend to  state  tribunals;  and  if  in  such  cases,  there  is  no  reason 
why  it  should  not  equally  attach  upon  all  others  within  the  pur- 
view of  the  Constitution. 

It  has  been  argued  that  such  an  appellate  jurisdiction  over  state 
courts  is  inconsistent  with  the  genius  of  our  governments,  and  the 
spirit  of  the  Constitution.  That  the  latter  was  never  designed  to 
act  upon  state  sovereignties,  but  only  upon  the  people,  and  that 
if  the  power  exists,  it  will  materially  impair  the  sovereignty  of  the 
states,  and  the  independence  of  their  courts.  We  cannot  yield 
to  the  force  of  this  reasoning;  it  assumes  principles  which  we  can- 
not admit,  and  draws  conclusions  to  which  we  do  not  yield  our 
assent. 

It  is  a  mistake  that  the  Constitution  was  not  designed  to  operate 
upon  states,  in  their  corporate  capacities.  It  is  crowded  with 
provisions  which  restrain  or  annul  the  sovereignty  of  the  states 
in  some  of  the  highest  branches  of  their  prerogatives.  The  tenth 
section  of  the  first  article  contains  a  long  list  of  disabilities  and 
prohibitions  imposed  upon  the  states.  Surely,  when  such  essen- 
tial portions  of  state  sovereignty  are  taken  away,  or  prohibited 
to  be  exercised,  it  cannot  be  correctly  asserted  that  the  Constitu- 
tion does  not  act  upon  the  states.  The  language  of  the  Constitu- 
tion is  also  imperative  upon  the  states  as  to  the  performance  of 
many  duties.  It  is  imperative  upon  the  state  legislatures  to  make 
laws  prescribing  the  time,  places,  and  manner  of  holding  elections 
for  senators  and  representatives,  and  for  electors  of  president  and 
vice-president.  And  in  these,  as  well  as  some  other  cases,  con- 
gress have  a  right  to  revise,  amend,  or  supersede  the  laws  which 
may  be  passed  by  state  legislatures.  When,  therefore,  the  states 
are  stripped  of  some  of  the  highest  attributes  of  sovereignty,  and 
the  same  are  given  to  the  United  States;  when  the  legislatures  of 
the  states,  are,  in  some  respects,  under  the  control  of  congress,  and 
in  every  case  are,  under  the  Constitution,  bound  by  the  paramount 
authority  of  the  United  States;  it  is  certainly  difficult  to  support 
the  argument  that  the  appellate  power  over  the  decisions  of  state 
courts  is  contrary  to  the  genius  of  our  institutions.     The  courts 


116  FEDERAL   GOVERNMENT. 

of  the  United  States  can,  without  question,  revise  the  proceedings 
of  the  executive  and  legislative  authorities  of  the  states,  and  if 
they  are  found  to  be  contrary  to  the  Constitution,  may  declare 
them  to  be  of  no  legal  validity.  Surely  the  exercise  of  the  same 
right  over  judicial  tribunals  is  not  a  higher  or  more  dangerous  act 
of  sovereign  power.  .  .  . 

It  has  been  further  argued  against  the  existence  of  this  appellate 
power,  that  it  would  form  a  novelty  in  our  judicial  institutions. 
This  is  certainly  a  mistake.  In  the  Articles  of  Confederation,  an 
instrument  framed  with  infinitely  more  deference  to  state  rights 
and  state  jealousies,  a  power  was  given  to  congress  to  establish 
"  courts  for  revising  and  determining,  finally,  appeals  in  all 
cases  of  captures."  It  is  remarkable,  that  no  power  was  given 
to  entertain  original  jurisdiction  in  such  cases;  and,  conse- 
quently, the  appellate  power  (although  not  so  expressed  in  terms) 
was  altogether  to  be  exercised  in  revising  the  decisions  of  state 
tribunals.  .  .  . 

It  is  further  argued,  that  no  great  public  mischief  can  result 
from  a  construction  which  shall  limit  the  appellate  power  of  the 
United  States  to  cases  in  their  own  courts:  first,  because  state 
judges  are  bound  by  an  oath  to  support  the  Constitution  of  the 
United  States,  and  must  be  presumed  to  be  men  of  learning  and 
integrity;  and,  secondly,  because  congress  must  have  an  unques- 
tionable right  to  remove  all  cases  within  the  scope  of  the  judicial 
power  from  the  state  courts  to  the  courts  of  the  United  States,  at 
any  time  before  final  judgment,  though  not  after  final  judgment. 
As  to  the  first  reason  —  admitting  that  the  judges  of  the  state 
courts  are,  and  always  will  be,  of  as  much  learning,  integrity,  and 
wisdom,  as  those  of  the  courts  of  the  United  States  (which  we  very 
cheerfully  admit),  it  does  not  aid  the  argument.  It  is  manifest 
that  the  Constitution  has  proceeded  upon  a  theory  of  its  own,  and 
given  or  withheld  powers  according  to  the  judgment  of  the  Amer- 
ican people,  by  whom  it  was  adopted.  We  can  only  construe  its 
powers,  and  cannot  inquire  into  the  policy  or  principles  which 
induced  the  grant  of  them.  The  Constitution  has  presumed 
(whether  rightly  or  wrongly  we  do  not  inquire)  that  state  attach- 
ments, state  prejudices,  state  jealousies,  and  state  interests  might 
sometimes  obstruct,  or  control,  or  be  supposed  to  obstruct  or  con- 
trol, the  regular  administration  of  justice.  Hence,  in  controver- 
sies between  states;  between  citizens  of  different  states;  between 
citizens  claiming  grants  under  different  states;  between  a  state 
and  its  citizens,  or  foreigners,  and  between  citizens  and  foreigners, 


MARTIN   V.    HUNTER'S   LESSEE.  117 

it  enables  the  parties,  under  the  authority  of  congress,  to  have  the 
controversies  heard,  tried,  and  determined  before  the  national 
tribunals.  No  other  reason  than  that  which  has  been  stated  can 
be  assigned,  why  some,  at  least,  of  those  cases  should  not  have  been 
left  to  the  cognizance  of  the  state  courts.  In  respect  to  the  other 
enumerated  cases  —  the  cases  arising  under  the  Constitution,  laws, 
and  treaties  of  the  United  States,  cases  affecting  ambassadors  and 
other  public  ministers,  and  cases  of  admiralty  and  maritime  juris- 
diction —  reasons  of  a  higher  and  more  extensive  nature,  touching 
the  safety,  peace,  and  sovereignty  of  the  nation,  might  well  jus- 
tify a  grant  of  exclusive  jurisdiction. 

This  is  not  all.  A  motive  of  another  kind,  perfectly  compatible 
with  the  most  sincere  respect  for  state  tribunals,  might  induce  the 
grant  of  appellate  power  over  their  decisions.  That  motive  is  the 
importance,  and  even  necessity  of  uniformity  of  decisions  through- 
out the  whole  United  States,  upon  all  subjects  within  the  purview 
of  the  Constitution.  Judges  of  equal  learning  and  integrity,  in 
different  states,  might  differently  interpret  a  statute,  or  a  treaty 
of  the  United  States,  or  even  the  Constitution  itself :  If  there  were 
no  revising  authority  to  control  these  jarring  and  discordant  judg- 
ments, and  harmonize  them  into  uniformity,  the  laws,  the  treaties, 
and  the  Constitution  of  the  United  States  would  be  different  in 
different  states,  and  might,  perhaps,  never  have  precisely  the  same 
construction,  obligation,  or  efficacy,  in  any  two  states.  .  .  . 

There  is  an  additional  consideration,  which  is  entitled  to  great 
weight.  The  Constitution  of  the  United  States  was  designed  for 
the  common  and  equal  benefit  of  all  the  people  of  the  United 
States.  The  judicial  power  was  granted  for  the  same  benign  and 
salutary  purposes.  It  was  not  to  be  exercised  exclusively  for  the 
benefit  of  parties  who  might  be  plaintiffs,  and  would  elect  the 
national  forum,  but  also  for  the  protection  of  defendants  who 
might  be  entitled  to  try  their  rights,  or  assert  their  privileges,  be- 
fore the  same  forum.  Yet,  if  the  construction  contended  for  be 
correct,  it  will  follow,  that  as  the  plaintiff  may  always  elect  the 
state  court,  the  defendant  may  be  deprived  of  all  the  security 
which  the  Constitution  intended  in  aid  of  his  rights.  Such  a  state 
of  things  can,  in  no  respect,  be  considered  as  giving  equal  rights. 
To  obviate  this  difficulty,  we  are  referred  to  the  power  which  it  is 
admitted  congress  possess  to  remove  suits  from  state  courts  to  the 
national  courts;  and  this  forms  the  second  ground  upon  which 
the  argument  we  are  considering  has  been  attempted  to  be  sus- 
tained. 


118  FEDERAL   GOVERNMENT. 

This  power  of  removal  is  not  to  be  found  in  express  terms  in  any 
part  of  the  Constitution;  if  it  be  given,  it  is  only  given  by  implica- 
tion, as  a  power  necessary  and  proper  to  carry  into  effect  some 
express  power.  .  .  .  It  presupposes  an  exercise  of  original  jurisdic- 
tion to  have  attached  elsewhere.  The  existence  of  this  power  of 
removal  is  familiar  in  courts  acting  according  to  the  course  of  the 
common  law  in  criminal  as  well  as  civil  cases,  and  it  is  exercised 
before  as  well  as  after  judgment.  But  this  is  always  deemed  in 
both  cases  an  exercise  of  appellate,  and  not  of  original  jurisdiction. 
If,  then,  the  right  of  removal  be  included  in  the  appellate  jurisdic- 
.  tion,  it  is  only  because  it  is  one  mode  of  exercising  that  power,  and 
as  congress  is  not  limited  by  the  Constitution  to  any  particular 
mode,  or  time  of  exercising  it,  it  may  authorize  a  removal  either 
before  or  after  judgment.  The  time,  the  process,  and  the  manner 
must  be  subject  to  its  absolute  legislative  control.  A  writ  of  error 
♦  is,  indeed,  but  a  process  which  removes  the  record  of  one  court  to 
the  possession  of  another  court,  and  enables  the  latter  to  inspect  the 
proceedings,  and  give  such  judgment  as  its  own  opinion  of  the  law 
and  justice  of  the  case  may  warrant.  There  is  nothing  in  the 
nature  of  the  process  which  forbids  it  from  being  applied  by  the  legis- 
lature to  interlocutory  as  well  as  final  judgments.  And  if  the  right 
of  removal  from  state  courts  exist  before  judgment,  because  it  is 
included  in  the  appellate  power,  it  must,  for  the  same  reason,  exist 
after  judgment.  .  .  . 

It  is  the  opinion  of  the  whole  court,  that  the  judgment  of  the 
court  of  appeals  of  Virginia,  rendered  on  the  mandate  in  this  cause^ 
be  reversed,  and  the  judgment  of  the  district  court,  held  at  Win- 
chester, be,  and  the  same  is  hereby  affirmed. 

Johnson,  J.  It  will  be  observed  in  this  case,  that  the  court 
disavows  all  intention  to  decide  on  the  right  to  issue  compulsory 
process  to  the  state  courts;  thus  leaving  us,  in  my  opinion,  where 
the  Constitution  and  laws  place  us — supreme  over  persons  and 
cases  as  far  as  our  judicial  powers  extend,  but  not  asserting  any 
compulsory  control  over  the  state  tribunals. 

In  this  view  I  acquiesce  in  their  opinion,  but  not  altogether  in 
the  reasoning,  or  opinion,  of  my  brother  who  delivered  it.  .  .  . 


McCULLOCH   V.    MARYLAND.  119 

Mcculloch  v.  Maryland  et  ai. 

Supreme  Court  of  the  United  States.     1819. 
[4.Wheaton,  316.] ' 

Error  to  the  Court  of  Appeals  of  the  State  of  Maryland. 

In  1816  Congress  passed  an  act  incorporating  the  Bank  of  the 
United  States.  In  1817  the  bank  established  a  branch  in  Mary- 
land. In  1818  Maryland  passed  "  An  Act  to  impose  a  Tax  on  all 
Banks  or  Branches  thereof  in  the  State  of  Maryland,  not  chartered 
by  the  Legislature,"  providing  "  that  if  any  bank  has  established, 
or  shall,  without  authority  from  the  State,  .  .  .  establish  any 
branch,  office  of  discount  and  deposit,  or  office  of  pay  and  receipt, 
...  it  shall  not  be  lawful  for  the  said  branch  ...  to  issue  notes 
...  of  any  other  denomination  than  five,  ten,  twenty,  fifty,  one 
hundred,  five  hundred,  and  one  thousand  dollars,  and  no  other 
shall  be  issued  except  upon  stamped  paper,"  the  stamps  ranging 
from  ten  cents  for  a  five  dollar  note  to  twenty  dollars  for  a  one 
thousand  dollar  note,  and  being  furnished  by  the  Treasurer  of 
the  Western  Shore  and  to  be  paid  for  upon  delivery.  The  act 
provided  "  that  any  institution  .  .  .  may  relieve  itself  from 
.  .  .  the  provisions  ...  by  paying  annually  .  .  .  fifteen  thou- 
sand dollars."  The  act  provided  also  that  any  officer  of  an  in- 
stitution offending  against  the  provisions  "  shall  forfeit  .  .  .  five 
hundred  dollars  for  each  and  every  offence;  ...  to  be  recovered 
by  indictment,  or  action  of  debt,  .  .  .  one-half  to  the  informer, 
and  the  other  half  to  the  use  of  the  State."  McCulloch,  as  cashier 
of  the  branch,  issued  certain  bank-notes  in  defiance  of  the  act. 
Thereupon  James,  suing  for  himself  and  for  the  State,  brought  an 
action  of  debt  in  the  county  court  of  Baltimore  County,  to  recover 
the  penalties.  Under  an  agreed  statement  of  facts,  that  court 
rendered  judgment  against  McCulloch;  and  the  judgment  was 
affirmed  in  the  highest  court  of  the  State. 

Webster  and  Pinkney,  for  the  plaintiff  in  error. 

Hopkinson,  Jones,  and  Martin,  contra. 

Wirt,  Attorney  General,  was  also  heard  by  reason  of  the  inter- 
est of  the  United  States. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  first  question  made  in  the  cause  is,  has  Congress  power  to 
incorporate  a  bank  ? 

*  An  abbreviated  statement  has  been  presented.  —  Ed. 


120  FEDERAL   GOVERNMENT. 

It  has  been  truly  said,  that  this  can  scarcely  be  considered  as  an 
open  question,  entirely  unprejudiced  by  the  former  proceedings 
of  the  nation  respecting  it.  The  principle  now  contested  was 
introduced  at  a  very  early  period  of  our  history,  has  been  recog- 
nised by  many  successive  legislatures,  and  has  been  acted  upon 
by  the  judicial  department,  in  cases  of  peculiar  deUcacy,  as  a  law 
of  undoubted  obligation.  .  .  . 

These  observations  belong  to  the  cause;  but  they  are  not  made 
under  the  impression  that,  were  the  question  entirely  new,  the  law 
would  be  found  irreconcilable  with  the  constitution. 

In  discussing  this  question,  the  counsel  for  the  State  of  Mary- 
land have  deemed  it  of  some  importance,  in  the  construction  of  the 
constitution,  to  consider  that  instrument  not  as  emanating  from 
the  people,  but  as  the  act  of  sovereign  and  independent  States. 
The  powers  of  the  general  government,  it  has  been  said,  are  dele- 
gated by  the  States,  who  alone  are  truly  sovereign;  and  must  be 
exercised  in  subordination  to  the  States,  who  alone  possess  su- 
preme dominion. 

It  would  be  difficult  to  sustain  this  proposition.  The  Conven- 
tion which  framed  the  constitution  was  indeed  elected  by  the  State 
legislatures.  But  the  instrument,  when  it  came  from  their  hands, 
was  a  mere  proposal,  without  obligation,  or  pretensions  to  it.  It 
was  reported  to  the  then  existing  Congress  of  the  United  States, 
with  a  request  that  it  might  "  be  submitted  to  a  Convention  of 
Delegates,  chosen  in  each  State  by  the  people  thereof,  under  the 
recommendation  of  its  Legislature,  for  their  assent  and  ratifi- 
cation." This  mode  of  proceeding  was  adopted;  and  by  the 
Convention,  by  Congress,  and  by  the  State  Legislatures,  the  instru- 
ment was  submitted  to  the  people.  They  acted  upon  it  in  the 
only  manner  in  which  they  can  act  safely,  effectively,  and  wisely, 
on  such  a  subject,  by  assembling  in  Convention.  It  is  true,  they 
assembled  in  their  several  States  —  and  where  else  should  they 
have  assembled  ?  No  political  dreamer  was  ever  wild  enough  to 
think  of  breaking  down  the  lines  which  separate  the  States,  and 
of  compounding  the  American  people  into  one  common  mass. 
Of  consequence,  when  they  act,  they  act  in  their  States.  But  the 
measures  they  adopt  do  not,  on  that  account,  cease  to  be  the 
measures  of  the  people  themselves,  or  become  the  measures  of 
the  State  governments. 

From  these  Conventions  the  constitution  derives  its  whole 
authority.  The  government  proceeds  directly  from  the  people; 
is  "  ordained  and  established  "  in  the  name  of  the  people;  and  is 


McCULLOCH  V.   MARYLAND.  121 

declared  to  be  ordained,  "  in  order  to  form  a  more  perfect  union, 
establish  justice,  ensure  domestic  tranquillity,  and  secure  the 
blessings  of  liberty  to  themselves  and  to  their  posterity."  The 
assent  of  the  States,  in  their  sovereign  capacity,  is  implied  in  call- 
ing a  Convention,  and  thus  submitting  that  instrument  to  the 
people.  But  the  people  were  at  perfect  liberty  to  accept  or  reject 
it;  and  their  act  was  final.  It  required  not  the  affirmance,  and 
could  not  be  negatived,  by  the  State  governments.  The  consti- 
tution, when  thus  adopted,  was  of  complete  obligation,  and  bound 
the  State  sovereignties. 

It  has  been  said,  that  the  people  had  already  surrendered  all 
their  powers  to  the  State  sovereignties,  and  had  nothing  more  to 
give.  But,  surely,  the  question  whether  they  may  resume  and 
modify  the  powers  granted  to  government  does  not  remain  to  be 
settled  in  this  country.  Much  more  might  the  legitimacy  of  the 
general  government  be  doubted,  had  it  been  created  by  the  States. 
The  powers  delegated  to  the  State  sovereignties  were  to  be  exer- 
cised by  themselves,  not  by  a  distinct  and  independent  sovereignty, 
created  by  themselves.  To  the  formation  of  a  league,  such  as 
was  the  confederation,  the  State  sovereignties  were  certainly  com- 
petent. But  when,  "  in  order  to  form  a  more  perfect  union,"  it 
was  deemed  necessary  to  change  this  alliance  into  an  effective 
government,  possessing  great  and  sovereign  powers,  and  acting 
directly  on  the  people,  the  necessity  of  referring  it  to  the  people, 
and  of  deriving  its  powers  directly  from  them,  was  felt  and  acknowl- 
edged by  all. 

The  government  of  the  Union,  then  (whatever  may  be  the  in- 
fluence of  this  fact  on  the  case),  is,  emphatically,  and  truly,  a 
government  of  the  people.  In  form  and  in  substance  it  emanates 
from  them.  Its  powers  are  granted  by  them,  and  are  to  be  ex- 
ercised directly  on  them,  and  for  their  benefit. 

This  government  is  acknowledged  by  all  to  be  one  of  enumer- 
ated powers.  .  .  . 

If  any  one  proposition  could  command  the  universal  assent  of 
mankind,  we  might  expect  it  would  be  this  —  that  the  government 
of  the  Union,  though  limited  in  its  powers,  is  supreme  within  its 
sphere  of  action.  This  would  seem  to  result  necessarily  from  its 
nature.  It  is  the  government  of  all ;  its  powers  are  delegated  by 
all ;  it  represents  all,  and  acts  for  all.  Though  any  one  State  may 
be  wiUing  to  control  its  operations,  no  State  is  willing  to  allow 
others  to  control  them.  The  nation,  on  those  subjects  on  which 
it  can  act,  must  necessarily  bind  its  component  parts.    But  this 


122  FEDERAL   GOVERNMENT. 

question  is  not  left  to  mere  reason:  the  people  have,  in  express 
terms,  decided  it,  by  saying,  "  this  constitution,  and  the  laws  of 
the  United  States,  which  shall  be  made  in  pursuance  thereof," 
"  shall  be  the  supreme  law  of  the  land,"  and  by  requiring  that  the 
members  of  the  State  legislatures,  and  the  officers  of  the  executive 
and  judicial  departments  of  the  States,  shall  take  the  oath  of 
fideUty  to  it. 

The  government  of  the  United  States,  then,  though  limited  in 
its  powers,  is  supreme;  and  its  laws,  when  made  in  pursuance  of 
the  constitution,  form  the  supreme  law  of  the  land,  "  any  thing 
in  the  constitution  or  laws  of  any  State  to  the  contrarv  notwith- 
standing." 

Among  the  enumerated  powers,  we  do  not  find  that  of  estab- 
lishing a  bank  or  creating  a  corporation.  But  there  is  no  phrase 
in  the  instrument  which,  Uke  the  articles  of  confederation,  ex- 
cludes incidental  or  impHed  powers;  and  which  requires  that 
everything  granted  shall  be  expressly  and  minutely  described. 
Even  the  10th  amendment,  which  was  framed  for  the  purpose  of 
quieting  the  excessive  jealousies  which  had  been  excited,  omits 
the  word  "  expressly,"  and  declares  only  that  the  powers  "  not 
delegated  to  the  United  States,  nor  prohibited  to  the  States,  are 
reserved  to  the  States  or  to  the  people;  "  thus  leaving  the  question, 
whether  the  particular  power  which  may  become  the  subject  of 
contest  has  been  delegated  to  the  one  government,  or  prohibited 
to  the  other,  to  depend  on  a  fair  construction  of  the  whole  instru- 
ment. The  men  who  drew  and  adopted  this  amendment  had 
experienced  the  embarrassments  resulting  from  the  insertion  of 
this  word  in  the  articles  of  confederation,  and  probably  omitted 
it  to  avoid  those  embarrassments.  A  constitution,  to  contain  an 
accurate  detail  of  all  the  subdivisions  of  which  its  great  powers 
will  admit,  and  of  all  the  means  by  which  they  may  be  carried  into 
execution,  would  partake  of  the  prolixity  of  a  legal  code,  and  could 
scarcely  be  embraced  by  the  human  mind.  It  would  probably 
never  be  understood  by  the  public.  Its  nature,  therefore,  requires, 
that  only  its  great  outlines  should  be  marked,  its  important  objects 
designated,  and  the  minor  ingredients  which  compose  those  ob- 
jects be  deduced  from  the  nature  of  the  objects  themselves.  That 
this  idea  was  entertained  by  the  framers  of  the  American  constitu- 
tion, is  not  only  to  be  inferred  from  the  nature  of  the  instrument, 
but  from  the  language.  Why  else  were  some  of  the  limitations, 
found  in  the  ninth  section  of  the  1st  article,  introduced  ?  It  is 
also,  in  some  degree,  warranted  by  their  having  omitted  to  use 


Mcculloch  v.  Maryland.  123 

any  restrictive  term  which  might  prevent  its  receiving  a  fair  and 
just  interpretation.  In  considering  this  question,  then,  we  must 
never  forget,  that  it  is  a  constitution  we  are  expounding. 

Although,  among  the  enumerated  powers  of  government,  we  do 
not  find  the  word  "  bank  "  or  "  incorporation,"  we  find  the  great 
powers  to  lay  and  collect  taxes;  to  borrow  money;  to  regulate 
commerce;  to  declare  and  conduct  a  war;  and  to  raise  and  sup- 
port armies  and  navies.  The  sword  and  the  purse,  all  the  external 
relations,  and  no  inconsiderable  portion  of  the  industry  of  the 
nation,  are  entrusted  to  its  government.  It  can  never  be  pre- 
tended that  these  vast  powers  draw  after  them  others  of  inferior 
importance,  merely  because  they  are  inferior.  Such  an  idea  can 
never  be  advanced.  But  it  may  with  great  reason  be  contended, 
that  a  government,  entrusted  with  such  ample  powers,  on  the  due 
execution  of  which  the  happiness  and  prosperity  of  the  nation  so 
vitally  depends,  must  also  be  entrusted  with  ample  means  for  their 
execution.  The  power  being  given,  it  is  the  interest  of  the  nation 
to  facilitate  its  execution.  It  can  never  be  their  interest,  and 
cannot  be  presumed  to  have  been  their  intention,  to  clog  and  em- 
barrass its  execution  by  withholding  the  most  appropriate  means. 
Throughout  this  vast  republic,  from  the  St.  Croix  to  the  Gulph  of 
Mexico,  from  the  Atlantic  to  the  Pacific,  revenue  is  to  be  collected 
and  expended,  armies  are  to  be  marched  and  supported.  The 
exigencies  of  the  nation  may  require  that  the  treasure  raised  in 
the  north  should  be  transported  to  the  south,  that  raised  in  the 
east  conveyed  to  the  west,  or  that  this  order  should  be  reversed. 
Is  that  construction  of  the  constitution  to  be  preferred  which  would 
render  these  operations  difficult,  hazardous,  and  expensive  ?  Can 
we  adopt  that  construction  (unless  the  words  imperiously  require 
it),  which  would  impute  to  the  framers  of  that  instrument,  when 
granting  these  powers  for  the  public  good,  the  intention  of  im- 
peding their  exercise  by  withholding  a  choice  of  means  ?  If, 
indeed,  such  be  the  mandate  of  the  constitution,  we  have  only  to 
obey;  but  that  instrument  does  not  profess  to  enumerate  the 
means  by  which  the  powers  it  confers  may  be  executed ;  nor  does 
it  prohibit  the  creation  of  a  corporation,  if  the  existence  of  such  a 
being  be  essential  to  the  beneficial  exercise  of  those  powers.  It  is, 
then,  the  subject  of  fair  inquiry,  how  far  such  means  may  be  em- 
ployed. 

It  is  not  denied,  that  the  powers  given  to  the  government  imply 
the  ordinary  means  of  execution.  That,  for  example,  of  raising 
revenue,  and  applying  it  to  national  purposes,  is  admitted  to  imply 


124  FEDERAL   GOVERNMENT. 

the  power  of  conveying  money  from  place  to  place,  as  the  exigen- 
cies of  the  nation  may  require,  and  of  employing  the  usual  means 
of  conveyance.  But  it  is  denied  that  the  government  has  its 
choice  of  means;  or,  that  it  may  employ  the  most  convenient 
means,  if,  to  employ  them,  it  be  necessary  to  erect  a  corporation. 

On  what  foundation  does  this  argument  rest  ?  .  .  . 

The  creation  of  a  corporation,  it  is  said,  appertains  to  sover- 
eignty. This  is  admitted.  But  to  what  portion  of  sovereignty 
does  it  appertain  ?  Does  it  belong  to  one  more  than  to  another  ? 
In  America,  the  powers  of  sovereignty  are  divided  between  the 
government  of  the  Union,  and  those  of  the  States.  They  are 
each  sovereign,  with  respect  to  the  objects  committed  to  it,  and 
neither  sovereign  with  respect  to  the  objects  committed  to  the 
other.   .  .  . 

But  the  constitution  of  the  United  States  has  not  left  the  right 
of  Congress  to  employ  the  necessary  means,  for  the  execution  of 
the  powers  conferred  on  the  government,  to  general  reasoning. 
To  its  enumeration  of  powers  is  added  that  of  making  "  all  laws 
which  shall  be  necessary  and  proper,  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this  consti- 
tution, in  the  government  of  the  United  States,  or  in  any  depart- 
ment thereof." 

The  counsel  for  the  State  of  Maryland  have  urged  various  argu- 
ments, to  prove  that  this  clause,  though  in  terms  a  grant  of  power, 
is  not  so  in  effect;  but  is  really  restrictive  of  the  general  right, 
which  might  otherwise  be  implied,  of  selecting  means  for  executing 
the  enumerated  powers.  .  .  . 

The  argument  on  which  most  reliance  is  placed  is  drawn  from 
the  peculiar  language  of  this  clause.  Congress  is  not  empowered 
by  it  to  make  all  laws,  which  may  have  relation  to  the  powers  con- 
ferred on  the  government,  but  such  only  as  may  be  "  necessary  and 
proper  "  for  carrying  them  into  execution.  The  word  "  necessary," 
is  considered  as  controlling  the  whole  sentence,  and  as  limiting  the 
right  to  pass  laws  for  the  execution  of  the  granted  powers,  to  such 
as  are  indispensable,  and  without  which  the  power  would  be  nuga- 
tory. That  it  excludes  the  choice  of  means,  and  leaves  to  Con- 
gress, in  each  case,  that  only  which  is  most  direct  and  simple. 

Is  it  true,  that  this  is  the  sense  in  which  the  word  "  necessary  " 
is  always  used  ?  Does  it  always  import  an  absolute  physical 
necessity,  so  strong,  that  one  thing,  to  which  another  may  be 
termed  necessary,  cannot  exist  without  that  other  ?  We  think 
it  does  not.  .  .  . 


Mcculloch  v.  Maryland.  125 

It  must  have  been  the  intention  of  those  who  gave  these  powers, 
to  insure,  as  far  as  human  prudence  could  insure,  their  beneficial 
execution.  This  could  not  be  done  by  confiding  the  choice  of 
means  to  such  narrow  limits  as  not  to  leave  it  in  the  power  of  Con- 
gress to  adopt  any  which  might  be  appropriate,  and  which  were 
conducive  to  the  end.  .  .  . 

This  clause,  as  construed  by  the  State  of  Maryland,  would 
abridge,  and  almost  annihilate  this  useful  and  necessary  right  of  the 
legislature  to  select  its  means.  That  this  could  not  be  intended, 
is,  we  should  think,  had  it  not  been  already  controverted,  too 
apparent  for  controversy.     We  think  so  for  the  following  reasons : 

1st.  The  clause  is  placed  among  the  powers  of  Congress,  not 
among  the  limitations  on  those  powers. 

2nd.  Its  terms  purport  to  enlarge,  not  to  diminish  the  powers 
vested  in  the  government.  It  purports  to  be  an  additional  power, 
not  a  restriction  on  those  already  granted.  .  . 

We  admit,  as  all  must  admit,  that  the  powers  of  the  government 
are  limited,  and  that  its  limits  are  not  to  be  transcended.  But  we 
think  the  sound  construction  of  the  constitution  must  allow  to  the 
national  legislature  that  discretion,  with  respect  to  the  means  by 
which  the  powers  it  confers  are  to  be  carried  into  execution,  which 
will  enable  that  body  to  perform  the  high  duties  assigned  to  it,  in 
the  manner  most  beneficial  to  the  people.  Let  the  end  be  legiti- 
mate, let  it  be  within  the  scope  of  the  constitution,  and  all  means 
which  are  appropriate,  which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited,  but  consist  with  the  letter  and  spirit  of 
the  constitution,  are  constitutional. 

That  a  corporation  must  be  considered  as  a  means  not  less  usual, 
not  of  higher  dignity,  not  more  requiring  a  particular  specification 
than  other  means,  has  been  sufficiently  proved.  .  .  . 

If  a  corporation  may  be  employed  indiscriminately  with  other 
means  to  carry  into  execution  the  powers  of  the  government,  no 
particular  reason  can  be  assigned  for  excluding  the  use  of  a  bank, 
if  required  for  its  fiscal  operations.  To  use  one,  must  be  within 
the  discretion  of  Congress,  if  it  be  an  appropriate  mode  of  execut- 
ing the  powers  of  government.  That  it  is  a  convenient,  a  useful, 
and  essential  instrument  in  the  prosecution  of  its  fiscal  operations, 
is  not  now  a  subject  of  controversy.  .  .  . 

But,  were  its  necessity  less  apparent,  none  can  deny  its  being 
an  appropriate  measure;  and  if  it  is,  the  degree  of  its  necessity, 
as  has  been  very  justly  observed,  is  to  be  discussed  in  another 
place.      Should  Congress,  in  the  execution  of  its  powers,  adopt 


126  FEDERAL   GOVERNMENT. 

measures  which  are  prohibited  by  the  constitution;  or  should 
Congress,  under  the  pretext  of  executing  its  powers,  pass  laws  for 
the  accomplishment  of  objects  not  entrusted  to  the  government; 
it  would  become  the  painful  duty  of  this  tribunal,  should  a  case 
requiring  such  a  decision  come  before  it,  to  say  that  such  an  act 
was  not  the  law  of  the  land.  But  where  the  law  is  not  prohibited, 
and  is  really  calculated  to  effect  any  of  the  objects  entrusted  to  the 
government,  to  undertake  here  to  inquire  into  the  degree  of  its 
necessity,  would  be  to  pass  the  line  which  circumscribes  the  judicial 
department,  and  to  tread  on  legislative  ground.  This  court  dis- 
claims all  pretensions  to  such  a  power. 

After  this  declaration,  it  can  scarcely  be  necessary  to  say,  that 
the  existence  of  State  banks  can  have  no  possible  influence  on  the 
question.  No  trace  is  to  be  found  in  the  constitution  of  an  inten- 
tion to  create  a  dependence  of  the  government  of  the  Union  on 
those  of  the  States,  for  the  execution  of  the  great  powers  assigned 
to  it.  Its  means  are  adequate  to  its  ends;  and  on  those  means 
alone  was  it  expected  to  rely  for  the  accomplishment  of  its  ends. 
To  impose  on  it  the  necessity  of  resorting  to  means  which  it  can- 
not control,  which  another  government  may  furnish  or  withhold, 
would  render  its  course  precarious,  the  result  of  its  measures 
uncertain,  and  create  a  dependence  on  other  governments, 
which  might  disappoint  its  most  important  designs,  and  is  incom- 
patible with  the  language  of  the  constitution.  But  were  it  other- 
wise, the  choice  of  means  implies  a  right  to  choose  a  national  bank 
in  preference  to  State  banks,  and  Congress  alone  can  make  the 
election.  .  .  . 

It  being  the  opinion  of  the  Court,  that  the  act  incorporating  the 
bank  is  constitutional ;  and  that  the  power  of  establishing  a  branch 
in  the  State  of  Maryland  might  be  properly  exercised  by  the  bank 
itself,  we  proceed  to  inquire  — 

2.  Whether  the  State  of  Maryland  may,  without  violating  the 
constitutioA,  tax  that  branch  ? 

That  the  power  of  taxation  is  one  of  vital  importance;  that  it 
is  retained  by  the  States;  that  it  is  not  abridged  by  the  grant  of  a 
similar  power  to  the  government  of  the  Union;  that  it  is  to  be 
concurrently  exercised  by  the  two  governments :  are  truths  which 
have  never  been  denied.  But,  such  is  the  paramount  character 
of  the  constitution,  that  its  capacity  to  withdraw  any  subject  from 
the  action  of  even  this  power,  is  admitted.  The  States  are  ex- 
pressly forbidden  to  lay  any  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  their  inspection 


McCTJLLOCH   V.    MARYLAND.  127 

laws.  If  the  obligation  of  this  prohibition  must  be  conceded  — 
if  it  may  restrain  a  State  from  the  exercise  of  its  taxing  power  on 
imports  and  exports;  the  same  paramount  character  would  seem 
to  restrain,  as  it  certainly  may  restrain,  a  State  from  such  other 
exercise  of  this  power,  as  is  in  its  nature  incompatible  with,  and 
repugnant  to,  the  constitutional  laws  of  the  Union.  A  law,  abso- 
lutely repugnant  to  another,  as  entirely  repeals  that  other  as  if 
express  terms  of  repeal  were  used. 

On  this  ground  the  counsel  for  the  bank  place  its  claim  to  be 
exempted  from  the  power  of  a  State  to  tax  its  operations.  There 
is  no  express  provision  for  the  case,  but  the  claim  has  been  sus- 
tained on  a  principle  which  so  entirely  pervades  the  constitution, 
is  so  intermixed  with  the  materials  which  compose  it,  so  inter- 
woven with  its  web,  so  blended  with  its  texture,  as  to  be  incapable 
of  being  separated  from  it,  without  rending  it  into  shreds. 

This  great  principle  is,  that  the  constitution  and  the  laws  made 
in  pursuance  thereof  are  supreme;  that  they  control  the  consti- 
tution and  laws  of  the  respective  States,  and  cannot  be  controlled 
by  them.  .  .  . 

But  taxation  is  said  to  be  an  absolute  power,  which  acknowl- 
edges no  other  limits  than  those  expressly  prescribed  in  the  con- 
stitution, and  like  sovereign  power  of  every  other  description,  is 
trusted  to  the  discretion  of  those  who  use  it.  But  the  very  terms 
of  this  argument  admit  that  the  sovereignty  of  the  State,  in  the 
article  of  taxation  itself,  is  subordinate  to,  and  may  be  controlled 
by  the  constitution  of  the  United  States.  How  far  it  has  been 
controlled  by  that  instrument  must  be  a  question  of  construction. 
In  making  this  construction,  no  principle  not  declared,  can  be 
admissible,  which  would  defeat  the  legitimate  operations  of  a 
supreme  government.  It  is  of  the  very  essence  of  supremacy 
to  remove  all  obstacles  to  its  action  within  its  own  sphere,  and 
so  to  modify  every  power  vested  in  subordinate  governments,  as  to 
exempt  its  own  operations  from  their  own  influence.  This  effect 
need  not  be  stated  in  terms.  It  is  so  involved  in  the  declaration 
of  supremacy,  so  necessarily  implied  in  it,  that  the  expression  of  it 
could  not  make  it  more  certain.  We  must,  therefore,  keep  it  in 
view  while  construing  the  constitution. 

The  argument  on  the  part  of  the  State  of  Maryland,  is,  not  that 
the  States  may  directly  resist  a  law  of  Congress,  but  that  they  may 
exercise  their  acknowledged  powers  upon  it,  and  that  the  consti- 
tution leaves  them  this  right  in  the  confidence  that  they  will  not 
abuse  it.  .  .  , 


128  FEDERAL   GOVERNMENT. 

The  sovereignty  of  a  State  extends  to  everything  which  exists 
by  its  own  authority,  or  is  introduced  by  its  permission ;  but  does 
it  extend  to  those  means  which  are  employed  by  Congress  to  carry 
into  execution  powers  conferred  on  that  body  by  the  people  of  the 
United  States  ?  We  think  it  demonstrable  that  it  does  not.  Those 
powers  are  not  given  by  the  people  of  a  single  State.  They  are 
given  by  the  people  of  the  United  States  to  a  government  whose 
laws,  made  in  pursuance  of  the  constitution,  are  declared  to  be 
supreme.  Consequently,  the  people  of  a  single  State  cannot  con- 
fer a  sovereignty  which  will  extend  over  them.  .  .  . 

That  the  power  to  tax  involves  the  power  to  destroy;  that  the 
power  to  destroy  may  defeat  and  render  useless  the  power  to 
create ;  that  there  is  a  plain  repugnance,  in  conferring  on  one  gov- 
ernment a  power  to  control  the  constitutional  measures  of  another, 
which  other,  with  respect  to  those  very  measures,  is  declared  to 
be  supreme  over  that  which  exerts  the  control  are  propositions 
not  to  be  denied.  But  all  inconsistencies  are  to  be  reconciled  by 
the  magic  of  the  word  CONFIDENCE.  Taxation,  it  is  said,  does 
not  necessarily  and  unavoidably  destroy.  To  carry  it  to  the  excess 
of  destruction  would  be  an  abuse,  to  presume  which,  would  banish 
that  confidence  which  is  essential  to  all  government. 

But  is  this  a  case  of  confidence  ?  Would  the  people  of  any  one 
State  trust  those  of  another  with  a  power  to  control  the  most  in- 
significant operations  of  their  State  governments  ?  We  know 
they  would  not.  Why,  then,  should  we  suppose  that  the  people 
of  any  one  State  should  be  wiUing  to  trust  those  of  another  with  a 
power  to  control  the  operations  of  a  government  to  which  they 
have  confided  their  most  important  and  most  valuable  interests  ? 
In  the  legislature  of  the  Union  alone,  are  all  represented.  The 
legislature  of  the  Union  alone,  therefore,  can  be  trusted  by  the 
people  with  the  power  of  controlling  measures  which  concern  all, 
in  the  confidence  that  it  will  not  be  abused.  .  .  . 

If  the  States  may  tax  one  instrument,  employed  by  the  govern- 
ment in  the  execution  of  its  powers,  they  may  tax  any  and  every 
other  instrument.  They  may  tax  the  mail;  they  may  tax  the 
mint;  they  may  tax  patent  rights ;  they  may  tax  the  papers  of  the 
custom-house;  they  may  tax  judicial  process;  they  may  tax  all 
the  means  employed  by  the  government,  to  an  excess  which  would 
defeat  all  the  ends  of  government.  This  was  not  intended  by  the 
American  people.  They  did  not  design  to  make  their  government 
dependent  on  the  States.  .  .  . 


McCULLOCH   V.    MARYLAND.  129 

This  is  not  all.  If  the  controlling  power  of  the  States  be  estab- 
lished; if  their  supremacy  as  to  taxation  be  acknowledged;  what 
is  to  restrain  their  exercising  this  control  in  any  shape  they  may 
please  to  give  it  ?  Their  sovereignty  is  not  confined  to  taxation. 
That  is  not  the  only  mode  in  which  it  might  be  displayed.  The 
question  is,  in  truth,  a  question  of  supremacy:  and  if  the  right  of 
the  States  to  tax  the  means  employed  by  the  general  government 
be  conceded,  the  declaration  that  the  constitution,  and  the  laws 
made  in  pursuance  thereof,  shall  be  the  supreme  law  of  the  land, 
is  empty  and  unmeaning  declamation.  .  .  . 

It  has  also  been  insisted,  that,  as  the  power  of  taxation  in  the 
general  and  State  governments  is  acknowledged  to  be  concurrent, 
every  argument  which  would  sustain  the  right  of  the  general  gov- 
ernment to  tax  banks  chartered  by  the  States,  will  equally  sustain 
the  right  of  the  States  to  tax  banks  chartered  by  the  general  gov- 
ernment. 

But  the  two  cases  are  not  on  the  same  reason.  The  people  of  all 
the  States  have  created  the  general  government,  and  have  con- 
ferred upon  it  the  general  power  of  taxation.  The  people  of  all  the 
States,  and  the  States  themselves,  are  represented  in  Congress, 
and,  by  their  representatives,  exercise  this  power.  When  they 
tax  the  chartered  institutions  of  the  States,  they  tax  their  con- 
stituents; and  these  taxes  must  be  uniform.  But,  when  a  State 
taxes  the  operations  of  the  government  of  the  United  States,  it 
acts  upon  institutions  created,  not  by  their  own  constituents,  but 
by  people  over  whom  they  claim  no  control.  It  acts  upon  the 
measures  of  a  government  created  by  others  as  well  as  themselves, 
for  the  benefit  of  others  in  common  with  themselves.  The  differ- 
ence is  that  which  always  exists,  and  always  must  exist,  between 
the  action  of  the  whole  on  a  part,  and  the  action  of  a  part  on  the 
whole  —  between  the  laws  of  a  government  declared  to  be  su- 
preme, and  those  of  a  government  which,  when  in  opposition  to 
those  laws,  is  not  supreme.  .  .  . 

The  Court  has  bestowed  on  this  subject  its  most  deliberate  con- 
sideration. The  result  is  a  conviction  that  the  States  have  no 
power,  by  taxation  or  otherwise,  to  retard,  impede,  burden,  or  in 
any  manner  control,  the  operations  of  the  constitutional  laws 
enacted  by  Congress  to  carry  into  execution  the  powers  vested 
in  the  general  government.  This  is,  we  think,  the  unavoid- 
able consequence  of  that  supremacy  which  the  constitution  has 
declared. 


130  FEDERAL   GOVERNMENT, 

We  are  unanimously  of  opinion,  that  the  law  passed  by  the  legis- 
lature of  Maryland,  imposing  a  tax  on  the  Bank  of  the  United 
States,  is  unconstitutional  and  void. 

This  opinion  does  not  deprive  the  States  of  any  resources  which 
they  originally  possessed.  It  does  not  extend  to  a  tax  paid  by  the 
real  property  of  the  bank,  in  common  with  the  other  real  property 
within  the  State,  nor  to  a  tax  imposed  on  the  interest  which  the 
citizens  of  Maryland  may  hold  in  this  institution,  in  common  with 
other  property  of  the  same  description  throughout  the  State.  But 
this  is  a  tax  on  the  operations  of  the  bank,  and  is,  consequently, 
a  tax  on  the  operation  of  an  instrument  employed  by  the  govern- 
ment of  the  Union  to  carry  its  powers  into  execution.  Such  a  tax 
must  be  unconstitutional. 

Judgment  reversed. 


COHENS  V.  VIRGINIA. 
Supreme  Court  of  the  United  States.     1821. 

[6  Wheaton,  264.]  i 

Error  to  the  Quarterly  Session  Court  for  the  Borough  of  Nor- 
folk, Virginia. 

Barhour  and  Smyth,  for  the  defendant  in  error. 

D.  B.  Ogden  and  Pinkney,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  Court  of 
Hustings  for  the  borough  of  Norfolk,  on  an  information  for  selling 
lottery  tickets,  contrary  to  an  act  of  the  Legislature  of  Virginia. 
In  the  State  Court,  the  defendant  claimed  the  protection  of  an  act 
of  Congress.  A  case  was  agreed  between  the  parties,  which  states 
the  act  of  Assembly  on  which  the  prosecution  was  founded,  and 
the  act  of  Congress  on  which  the  defendant  relied,  and  concludes 
in  these  words:  "  If  upon  this  case  the  Court  shall  be  of  opinion 
that  the  acts  of  Congress  before  mentioned  were  valid,  and,  on 
the  true  construction  of  those  acts,  the  lottery  tickets  sold  by  the 
defendants  as  aforesaid,  might  lawfully  be  sold  within  the  State 

^  The  statement  has  been  omitted.  —  Ed. 


COHENS   V.    VIRGINIA.  131 

of  Virginia,  notwithstanding  the  act  or  statute  of  the  general 
assembly  of  Virginia  prohibiting  such  sale,  then  judgment  to  be 
entered  for  the  defendants:  And  if  the  Court  should  be  of  opinion 
that  the  statute  or  act  of  the  General  Assembly  of  the  State  of 
Virginia,  prohibiting  such  sale,  is  valid,  notwithstanding  the  said 
acts  of  Congress,  then  judgment  to  be  entered  that  the  defendants 
are  guilty,  and  that  the  Commonwealth  recover  against  them  one 
hundred  dollars  and  costs." 

Judgment  was  rendered  against  the  defendants;  and  the  Court 
in  which  it  was  rendered  being  the  highest  Court  of  the  State  in 
which  the  cause  was  cognizable,  the  record  has  been  brought  into 
this  Court  by  writ  of  error.^ 

The  defendant  in  error  moves  to  dismiss  this  writ,  for  want  of 
jurisdiction.  .  .  . 

The  first  question  to  be  considered  is,  whether  the  jurisdiction 
of  this  Court  is  excluded  by  the  character  of  the  parties,  one  of 
them  being  a  State,  and  the  other  a  citizen  of  that  State  ?  .  .  . 

The  Court  can  perceive  no  reason  founded  on  the  character  of 
the  parties  for  introducing  an  exception  which  the  constitution 
has  not  made;  and  we  think  that  the  judicial  power,  as  originally 
given,  extends  to  all  cases  arising  under  the  constitution  or  a  law 
of  the  United  States,  whoever  may  be  the  parties.  .  .  . 

This  leads  to  a  consideration  of  the  11th  amendment. 

It  is  in  these  words:  "  The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity 
commenced  or  prosecuted  against  one  of  the  United  States,  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any  foreign 
State." 

It  is  a  part  of  our  history,  that,  at  the  adoption  of  the  constitu- 
tion, all  the  States  were  greatly  indebted;  and  the  apprehension 
that  these  debts  might  be  prosecuted  in  the  federal  Courts,  formed 
a  very  serious  ob j  ection  to  that  instrument.  Suits  were  instituted ; 
and  the  Court  maintained  its  jurisdiction.  The  alarm  was  gen- 
eral; and,  to  quiet  the  apprehensions  that  were  so  extensively 
entertained,  this  amendment  was  proposed  in  Congress,  and 
adopted  by  the  State  legislatures.  That  its  motive  was  not  to 
maintain  the  sovereignty  of  a  State  from  the  degradation  supposed 
to  attend  a  compulsory  appearance  before  the  tribunal  of  the 
nation,  may  be  inferred  from  the  terms  of  the  amendment.      It 

^  The  plaintiff  in  error  prayed  an  appeal  from  the  judgment  of  the  Court 
of  Hustings,  but  it  was  refused,  on  the  ground  that  there  was  no  higher 
State  tribxmal  which  could  take  cognizance  of  the  case.  —  Rep. 


132  FEDERAL   GOVERNMENT. 

does  not  comprehend  controversies  between  two  or  more  States, 
or  between  a  State  and  a  foreign  State.  The  jurisdiction  of  the 
Court  still  extends  to  these  cases:  and  in  these  a  State  may  still 
be  sued.  We  must  ascribe  the  amendment,  then,  to  some  other 
cause  than  the  dignity  of  a  State.  There  is  no  difficulty  in  finding 
this  cause.  Those  who  were  inhibited  from  commencing  a  suit 
against  a  State,  or  from  prosecuting  one  which  might  be  com- 
menced before  the  adoption  of  the  amendment,  were  persons  who 
might  probably  be  its  creditors.  There  was  not  much  reason  to 
fear  that  foreign  or  sister  States  would  be  creditors  to  any  con- 
siderable amount,  and  there  was  reason  to  retain  the  jurisdiction 
of  the  Court  in  those  cases,  because  it  might  be  essential  to  the 
preservation  of  peace.  The  amendment,  therefore,  extended  to 
suits  commenced  or  prosecuted  by  individuals,  but  not  to  those 
brought  by  States.  .  .  . 

What  is  a  suit  ?  .  .  .  In  law  language,  it  is  the  prosecution 
of  some  demand  in  a  Court  of  justice.  .  .  . 

To  commence  a  suit,  is  to  demand  something  by  the  institution 
of  process  in  a  Court  of  justice;  and  to  prosecute  the  suit,  is,  ac- 
cording to  the  common  acceptation  of  language,  to  continue  that 
demand.  By  a  suit  commenced  by  an  individual  against  a  State, 
we  should  understand  process  sued  out  by  that  individual  against 
the  State,  for  the  purpose  of  establishing  some  claim  against  it  by 
the  judgment  of  a  Court;  and  the  prosecution  of  that  suit  is  its 
continuance.  Whatever  may  be  the  stages  of  its  progress,  the 
actor  is  still  the  same.  Suits  had  been  commenced  in  the  Supreme 
Court  against  some  of  the  States  before  this  amendment  was  in- 
troduced into  Congress,  and  others  might  be  commenced  before 
it  should  be  adopted  by  the  State  legislatures,  and  might  be  de- 
pending at  the  time  of  its  adoption.  The  object  of  the  amend- 
ment was  not  only  to  prevent  the  commencement  of  future  suits, 
but  to  arrest  the  prosecution  of  those  which  might  be  commenced 
when  this  article  should  form  a  part  of  the  constitution.  It  there- 
fore embraces  both  objects;  and  its  meaning  is,  that  the  judicial 
power  shall  not  be  construed  to  extend  to  any  suit  which  may  be 
commenced,  or  which,  if  already  commenced,  may  be  prosecuted 
against  a  State  by  the  citizen  of  another  State.  If  a  suit,  brought 
in  one  Court,  and  carried  by  legal  process  to  a  supervising  Court, 
be  a  continuation  of  the  same  suit,  then  this  suit  is  not  commenced 
nor  prosecuted  against  a  State.  It  is  clearly  in  its  commencement 
the  suit  of  a  State  against  an  individual,  which  suit  is  transferred 
to  this  Court,  not  for  the  purpose  of  asserting  any  claim  against 


COHENS   V.    VIRGINIA.  133 

the  State,  but  for  the  purpose  of  asserting  a  constitutional  defence 
against  a  claim  made  by  a  State. 

A  writ  of  error  is  defined  to  be,  a  commission  by  which  the  judges 
of  one  Court  are  authorized  to  examine  a  record  upon  which  a 
judgment  was  given  in  another  Court,  and,  on  such  examination, 
to  affirm  or  reverse  the  same  according  to  law.  .  .  . 

Under  the  judiciary  act,  the  effect  of  a  writ  of  error  is  simply  to 
bring  the  record  into  Court,  and  submit  the  judgment  of  the  in- 
ferior tribunal  to  re-examination.  It  does  not  in  any  manner  act 
upon  the  parties;  it  acts  only  on  the  record.  It  removes  the 
record  into  the  supervising  tribunal.  Where,  then,  a  State  ob- 
tains a  judgment  against  an  individual,  and  the  Court,  rendering 
such  judgment,  overrules  a  defence  set  up  under  the  constitution 
or  laws  of  the  United  States,  the  transfer  of  this  record  into  the 
Supreme  Court,  for  the  sole  purpose  of  inquiring  whether  the  judg- 
ment violates  the  constitution  or  laws  of  the  United  States,  can, 
with  no  propriety,  we  think,  be  denominated  a  suit  commenced 
or  prosecuted  against  the  State  whose  judgment  is  so  far  re- 
examined. Nothing  is  demanded  from  the  State.  No  claim 
against  it  of  any  description  is  asserted  or  prosecuted.  The  party 
is  not  to  be  restored  to  the  possession  of  anything.  Essentially, 
it  is  an  appeal  on  a  single  point;  and  the  defendant  who  appeals 
from  a  judgment  rendered  against  him,  is  never  said  to  commence 
or  prosecute  a  suit  against  the  plaintiff  who  has  obtained  the  judg- 
ment. The  writ  of  error  is  given  rather  than  an  appeal,  because 
it  is  the  more  usual  mode  of  removing  suits  at  common  law;  and 
because,  perhaps,  it  is  more  technically  proper  where  a  single  point 
of  law,  and  not  the  whole  case,  is  to  be  re-examined.  But  an  ap- 
peal might  be  given,  and  might  be  so  regulated  as  to  effect  every 
purpose  of  a  writ  of  error.  The  mode  of  removal  is  form,  and  not 
substance.  Whether  it  be  by  writ  of  error  or  appeal,  no  claim  is 
asserted,  no  demand  is  made  by  the  original  defendant;  he  only 
asserts  the  constitutional  right  to  have  his  defence  examined  by 
that  tribunal  whose  province  it  is  to  construe  the  constitution  and 
laws  of  the  Union. 

The  only  part  of  the  proceeding  which  is  in  any  manner  personal, 
is  the  citation.  And  what  is  the  citation  ?  It  is  simply  notice 
to  the  opposite  party  that  the  record  is  transferred  into  another 
Court,  where  he  may  appear,  or  decline  to  appear,  as  his  judgment 
or  inclination  may  determine.  As  the  party  who  has  obtained  a 
judgment  is  out  of  Court,  and  may,  therefore,  not  know  that  his 
cause  is  removed,  common  justice  requires  that  notice  of  the  fact 


134  FEDERAL   GOVERNMENT. 

should  be  given  him.  But  this  notice  is  not  a  suit,  nor  has  it  the 
effect  of  process.  If  the  party  does  not  choose  to  appear,  he  can- 
not be  brought  into  Court,  nor  is  his  failure  to  appear  considered 
as  a  default.  Judgment  cannot  be  given  against  him  for  his  non- 
appearance, but  the  judgment  is  to  be  re-examined,  and  reversed 
or  affirmed,  in  like  manner  as  if  the  party  had  appeared  and  argued 
his  cause. 

The  point  of  view  in  which  this  writ  of  error,  with  its  citation, 
has  been  considered  uniformly  in  the  Courts  of  the  Union,  has 
been  well  illustrated  by  a  reference  to  the  course  of  this  Court  in 
suits  instituted  by  the  United  States.  The  universally  received 
opinion  is,  that  no  suit  can  be  commenced  or  prosecuted  against 
the  United  States;  that  the  judiciary  act  does  not  authorize  such 
suits.  Yet  writs  of  error,  accompanied  with  citations,  have  uni- 
formly issued  for  the  removal  of  judgments  in  favor  of  the  United 
States  into  a  superior  Court,  where  they  have,  like  those  in  favor 
of  an  individual,  been  re-examined,  and  affirmed  or  reversed.  It 
has  never  been  suggested,  that  such  writ  of  error  was  a  suit  against 
the  United  States,  and,  therefore,  not  within  the  jurisdiction  of 
the  appellate  Court. 

It  is,  then,  the  opinion  of  the  Court,  that  the  defendant  who 
removes  a  judgment  rendered  against  him  by  a  State  Court  into 
this  Court,  for  the  purpose  of  re-examining  the  question,  whether 
that  judgment  be  in  violation  of  the  constitution  or  laws  of  the 
United  States,  does  not  commence  or  prosecute  a  suit  against  the 
State,  whatever  may  be  its  opinion  where  the  effect  of  the  writ 
may  be  to  restore  the  party  to  the  possession  of  a  thing  which  he 
demands.  .  .  . 

Motion  denied. 

The  cause  was  argued  on  the  merits. 

D.  B.  Ogden,  for  the  plaintiffs  in  error. 

Webster,  contra. 

Wirt,  Attorney  General,  in  reply. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

Two  questions  arise  on  this  act. 

1st.  Does  it  purport  to  authorize  the  corporation  to  force  the 
sale  of  these  lottery  tickets  in  States  where  such  sales  may  be 
prohibited  by  law  ?     If  it  does, 

2d.   Is  the  law  constitutional  ? 

If  the  first  question  be  answered  in  the  affirmative,  it  will  be- 
come necessary  to  consider  the  second.     If  it  should  be  answered  in 


ABLEMAN   V.    BOOTH.  135 

the  negative,  it  will  be  unnecessary,  and  consequently  improper, 
to  pursue  any  inquiries,  which  would  then  be  merely  speculative, 
respecting  the  power  of  Congress  in  the  case.  .  .  . 

The  Corporation  was  merely  empowered  to  authorize  the  draw- 
ing of  lotteries;  and  the  mind  of  Congress  was  not  directed  to  any 
provision  for  the  sale  of  the  tickets  beyond  the  limits  of  the  Cor- 
poration. That  subject  does  not  seem  to  have  been  taken  into 
view.  It  is  the  unanimous  opinion  of  the  Court,  that  the  law  can- 
not be  construed  to  embrace  it. 

Judgment  affirmed. 


ABLEMAN,  Plaintiff  in  Error,  v.  BOOTH; 

and   UNITED   STATES,  Plaintiff  in  Error,  v.  BOOTH. 

Supreme  Court  of  the  United  States.     1858. 

[21  Howard,  506.] ' 

Error  to  the  Supreme  Court  of  Wisconsin  in  two  cases  in  which 
it  had  discharged  Booth,  on  habeas  corpus,  from  the  custody  of 
officials  of  the  United  States. 

In  the  first  case  Booth  was  discharged  from  the  custody  of  the 
United  States  marshal  to  whose  custody  he  had  been  committed 
by  a  United  States  commissioner,  pending  trial  upon  the  charge 
of  aiding  in  the  escape  of  a  fugitive  slave  from  a  deputy  marshal ; 
and  in  the  second  case  Booth  was  discharged  from  the  custody  of 
a  sheriff  who,  under  order  of  the  United  States  District  Court, 
was  imprisoning  him  after  indictment,  trial,  and  conviction  upon 
the  same  charge.  In  each  case  the  State  court  disregarded  as  un- 
constitutional the  fugitive  slave  law  of  1850. 

Black,  Attorney  General,  for  the  plaintiffs  in  error,  no  counsel 
appearing,  contra. 

Taney,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

It  will  be  seen,  from  the  foregoing  statement  of  facts,  that  a 
judge  of  the  Supreme  Court  of  the  State  of  Wisconsin  in  the  first 
of  these  cases,  claimed  and  exercised  the  right  to  supervise  and 
annul  the  proceedings  of  a  commissioner  of  the  United  States,  and 

1  An  abbreviated  statement  has  been  framed  upon  the  opinion.  —  Ed. 


136  FEDERAL   GOVERNMENT. 

to  discharge  a  prisoner,  who  had  been  committed  by  the  commis- 
sioner for  an  offence  against  the  laws  of  this  Government,  and  that 
this  exercise  of  power  by  the  judge  was  afterwards  sanctioned  and 
affirmed  by  the  Supreme  Court  of  the  State. 

In  the  second  case,  the  State  court  has  gone  a  step  further,  and 
claimed  and  exercised  jurisdiction  over  the  proceedings  and  judg- 
ment of  a  District  Court  of  the  United  States,  and  upon  a  sum- 
mary and  collateral  proceeding,  by  habeas  corpus,  has  set  aside 
and  annulled  its  judgment,  and  discharged  a  prisoner  who  had 
been  tried  and  found  guilty  of  an  offence  against  the  laws  of  the 
United  States,  and  sentenced  to  imprisonment  by  the  District 
Court. 

And  it  further  appears  that  the  State  courts  have  not  only 
claimed  and  exercised  this  jurisdiction,  but  have  also  determined 
that  their  decision  is  final  and  conclusive  upon  all  the  courts  of 
the  United  States,  and  ordered  their  clerk  to  disregard  and  refuse 
obedience  to  the  writ  of  error  issued  by  this  court,  pursuant  to  the 
act  of  Congress  of  1789,  to  bring  here  for  examination  and  revision 
the  judgment  of  the  State  court. 

These  propositions  are  new  in  the  jurisprudence  of  the  United 
States,  as  well  as  of  the  States;  and  the  supremacy  of  the  State 
courts  over  the  courts  of  the  United  States,  in  cases  arising  under 
the  Constitution  and  laws  of  the  United  States,  is  now  for  the  first 
time  asserted  and  acted  upon  in  the  Supreme  Court  of  a  State.  . .  . 

The  judges  of  the  Supreme  Court  of  Wisconsin  do  not  distinctly 
state  from  what  source  they  suppose  they  have  derived  this  judi- 
cial power.  There  can  be  no  such  thing  as  judicial  authority, 
unless  it  is  conferred  by  a  Government  or  sovereignty;  and  if  the 
judges  and  courts  of  Wisconsin  possess  the  jurisdiction  they  claim, 
they  must  derive  it  either  from  the  United  States  or  the  State. 
It  certainly  has  not  been  conferred  on  them  by  the  United  States ; 
and  it  is  equally  clear  it  was  not  in  the  power  of  the  State  to  confer 
it,  even  if  it  had  attempted  to  do  so;  for  no  State  can  authorize 
one  of  its  judges  or  courts  to  exercise  judicial  power,  by  habeas 
corpus  or  otherwise,  within  the  jurisdiction  of  another  and  inde- 
pendent Government.  And  although  the  State  of  Wisconsin  is 
sovereign  within  its  territorial  limits  to  a  certain  extent,  yet  that 
sovereignty  is  limited  and  restricted  by  the  Constitution  of  the 
United  States.  And  the  powers  of  the  General  Government,  and 
of  the  State,  although  both  exist  and  are  exercised  within  the  same 
territorial  limits,  are  yet  separate  and  distinct  sovereignties,  act- 
ing separately  and  independently  of  each  other,  within  their  re- 


ABLEMAN   V.    BOOTH.  137 

spective  spheres.  And  the  sphere  of  action  appropriated  to  the 
United  States  is  as  far  beyond  the  reach  of  the  judicial  process 
issued  by  a  State  judge  or  a  State  court,  as  if  the  Hne  of  division 
was  traced  by  landmarks  and  monuments  visible  to  the  eye.  And 
the  State  of  Wisconsin  had  no  more  power  to  authorize  these  pro- 
ceedings of  its  judges  and  courts,  than  it  would  have  had  if  the 
prisoner  had  been  confined  in  Michigan,  or  in  any  other  State  of 
the  'Union,  for  an  offence  against  the  laws  of  the  State  in  which 
he  was  imprisoned.  .  .  . 

Questions  of  this  kind  must  always  depend  upon  the  Constitu- 
tion and  laws  of  the  United  States,  and  not  of  a  State.  The  Con- 
stitution was  not  formed  merely  to  guard  the  States  against 
danger  from  foreign  nations,  but  mainly  to  secure  union  and  har- 
mony at  home;  for  if  this  object  could  be  attained,  there  would  be 
but  little  danger  from  abroad;  and  to  accomphsh  this  purpose,  it 
was  felt  by  the  statesmen  who  framed  the  Constitution,  and  by  the 
people  who  adopted  it,  that  it  was  necessary  that  many  of  the 
rights  of  sovereignty  which  the  States  then  possessed  should  be 
ceded  to  the  General  Government;  and  that,  in  the  sphere  of 
action  assigned  to  it,  it  should  be  supreme,  and  strong  enough  to 
execute  its  own  laws  by  its  own  tribunals,  without  interruption 
from  a  State  or  from  State  authorities.  .  .  . 

It  was  essential,  therefore,  to  its  very  existence  as  a  Govern- 
ment, that  it  should  have  the  power  of  establishing  courts  of  justice, 
altogether  independent  of  State  power,  to  carry  into  effect  its  own 
laws;  and  that  a  tribunal  should  be  established  in  which  all  cases 
which  might  arise  under  the  Constitution  and  laws  and  treaties 
of  the  United  States,  whether  in  a  State  court  or  a  court  of  the 
United  States,  should  be  finally  and  conclusively  decided.  With- 
out such  a  tribunal,  it  is  obvious  that  there  would  be  no  unifor- 
mity of  judicial  decision;  and  that  the  supremacy  (which  is  but 
another  name  for  independence),  so  carefully  provided  in  the 
clause  of  the  Constitution  above  referred  to,  could  not  possibly 
be  maintained  peacefully,  unless  it  was  associated  with  this  para- 
mount judicial  authority. 

Accordingly,  it  was  conferred  on  the  General  Government,  in 
clear,  precise,  and  comprehensive  terms.  .  .  . 

Experience  has  demonstrated  that  this  power  was  not  unwisely 
surrendered  by  the  States;  for  in  the  time  that  has  already  elapsed 
since  this  Government  came  into  existence,  several  irritating  and 
angry  controversies  have  taken  place  between  adjoining  States, 
in  relation  to  their  respective  boundaries,  and  which  have  some- 


138  FEDERAL   GOVERNMENT. 

times  threatened  to  end  in  force  and  violence,  but  for  the  power 
vested  in  this  court  to  hear  them  and  decide  between  them. 

The  same  purposes  are  clearly  indicated  by  the  different  lan- 
guage employed  when  conferring  supremacy  upon  the  laws  of  the 
United  States,  and  jurisdiction  upon  its  courts.  In  the  first  case, 
it  provides  that  ''  this  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  shall  be  the  supreme 
law  of  the  land,  and  obligatory  upon  the  judges  in  every  State." 
The  words  in  italics  show  the  precision  and  foresight  which  marks 
every  clause  in  the  instrument.  The  sovereignty  to  be  created 
was  to  be  limited  in  its  powers  of  legislation,  and  if  it  passed  a  law 
not  authorized  by  its  enumerated  powers,  it  was  not  to  be  regarded 
as  the  supreme  law  of  the  land,  nor  were  the  State  judges  bound 
to  carry  it  into  execution.  And  as  the  courts  of  a  State,  and  the 
courts  of  the  United  States,  might,  and  indeed  certainly  would, 
often  differ  as  to  the  extent  of  the  powers  conferred  by  the  General 
Government,  it  was  manifest  that  serious  controversies  would 
arise  between  the  authorities  of  the  United  States  and  of  the  States, 
which  must  be  settled  by  force  of  arms,  unless  some  tribunal  was 
created  to  decide  between  them  finally  and  without  appeal. 

The  Constitution  has  accordingly  provided,  as  far  as  human 
foresight  could  provide,  against  this  danger.  A,nd  in  conferring 
judicial  power  upon  the  Federal  Government,  it  declares  that  the 
jurisdiction  of  its  courts  shall  extend  to  all  cases  arising  under 
"  this  Constitution  "  and  the  laws  of  the  United  States  —  leaving 
out  the  words  of  restriction  contained  in  the  grant  of  legislative 
power  which  we  have  above  noticed.  The  judicial  power  covers 
every  legislative  act  of  Congress,  whether  it  be  made  within  the 
limits  of  its  delegated  powers,  or  be  an  assumption  of  power  be- 
yond the  grants  in  the  Constitution.  .  .  . 

We  do  not  question  the  authority  of  State  court,  or  judge,  who 
is  authorized  by  the  laws  of  the  State  to  issue  the  writ  of  habeas 
corpus,  to  issue  it  in  any  case  where  the  party  is  imprisoned  within 
its  territorial  limits,  provided  it  does  not  appear,  when  the  appli- 
cation is  made,  that  the  person  imprisoned  is  in  custody  under  the 
authority  of  the  United  States.  The  court  or  judge  has  a  right 
to  inquire,  in  this  mode  of  proceeding,  for  what  cause  and  by  what 
authority  the  prisoner  is  confined  within  the  territorial  limits  of 
the  State  sovereignty.  And  it  is  the  duty  of  the  marshal,  or  other 
person  having  the  custody  of  the  prisoner,  to  make  known  to  the 
judge  or  court,  by  a  proper  return,  the  authority  by  which  he  holds 
him  in  custody.     This  right  to  inquire  by  process  of  habeas  corpus, 


ABLEMAN   V.    BOOTH.  139 

and  the  duty  of  the  officer  to  make  a  return,  grows,  necessarily, 
out  of  the  complex  character  of  our  Government,  and  the  existence 
of  two  distinct  and  separate  sovereignties  within  the  same  terri- 
torial space,  each  of  them  restricted  in  its  powers,  and  each  within 
its  sphere  of  action,  prescribed  by  the  Constitution  of  the  United 
States,  independent  of  the  other.  But,  after  the  return  is  made, 
and  the  State  judge  or  court  judicially  apprized  that  the  party  is 
in  custody  under  the  authority  of  the  United  States,  they  can 
proceed  no  further.  They  then  know  that  the  prisoner  is  within 
the  dominion  and  jurisdiction  of  another  Government,  and  that 
neither  the  writ  of  habeas  corpus,  nor  any  other  process  issued  under 
State  authority,  can  pass  over  the  line  of  division  between  the 
two  sovereignties.  He  is  then  within  the  dominion  and  exclusive 
jurisdiction  of  the  United  States.  If  he  has  committed  an  offence 
against  their  laws,  their  tribunals  alone  can  punish  him.  If  he  is 
wrongfully  imprisoned,  their  judicial  tribunals  can  release  him 
and  afford  him  redress.  And  although,  as  we  have  said,  it  is  the 
duty  of  the  marshal,  or  other  person  holding  him,  to  make  known, 
by  a  proper  return,  the  authority  under  which  he  detains  him,  it 
is  at  the  same  time  imperatively  his  duty  to  obey  the  process  of 
the  United  States,  to  hold  the  prisoner  in  custody  under  it,  and 
to  refuse  obedience  to  the  mandate  or  process  of  any  other  Govern- 
ment. And  consequently  it  is  his  duty  not  to  take  the  prisoner, 
nor  suffer  him  to  be  taken,  before  a  State  judge  or  court  upon  a 
habeas  corpus  issued  under  State  authority.  No  State  judge  or 
court,  after  they  are  judicially  informed  that  the  party  is  im- 
prisoned under  the  authority  of  the  United  States,  has  any  right 
to  interfere  with  him,  or  to  require  him  to  be  brought  before  them. 
And  if  the  authority  of  a  State,  in  the  form  of  judicial  process  or 
otherwise,  should  attempt  to  control  the  marshal  or  other  author- 
ized officer  or  agent  of  the  United  States,  in  any  respect,  in  the 
custody  of  his  prisoner,  it  would  be  his  duty  to  resist  it,  and  to 
call  to  his  aid  any  force  that  might  be  necessary  to  maintain  the 
authority  of  law  against  illegal  interference.  No  judicial  process, 
whatever  form  it  may  assume,  can  have  any  lawful  authority  out- 
side of  the  limits  of  the  jurisdiction  of  the  court  or  judge  by  whom 
it  is  issued;  and  an  attempt  to  enforce  it  beyond  these  boundaries 
is  nothing  less  than  lawless  violence. 

Nor  is  there  anything  in  this  supremacy  of  the  General  Gov- 
ernment, or  the  jurisdiction  of  its  judicial  tribunals,  to  awaken 
the  jealousy  or  offend  the  natural  and  just  pride  of  State  sover- 
eignty.    Neither  the  Government,  nor  the  powers  of  which  we  are 


140  FEDERAL   GOVERNMENT. 

speaking,  were  forced  upon  all  States.  The  Constitution  of  the 
United  States,  with  all  the  powers  conferred  by  it  on  the  General 
Government,  and  surrendered  by  the  States,  was  the  voluntary 
act  of  the  people  of  the  several  States,  dehberately  done,  for  their 
own  protection  and  safety  against  injustice  from  one  another.  .  .  . 

No  power  is  more  clearly  conferred  by  the  Constitution  and 
laws  of  the  United  States,  than  the  power  of  this  court  to  decide, 
ultimately  and  finally,  all  cases  arising  under  such  Constitution 
and  laws;  and  for  that  purpose  to  bring  here  for  revision,  by  writ 
of  error,  the  judgment  of  a  State  court,  where  such  questions  have 
arisen,  and  the  right  claimed  under  them  denied  by  the  highest 
judicial  tribunal  in  the  State.  .  .  . 

The  decisions  in  question  were  made  by  the  supreme  judicial 
tribunal  of  the  State;  and  when  a  court  so  elevated  in  its  position 
has  pronounced  a  judgment  which,  if  it  could  be  maintained,  would 
subvert  the  very  foundations  of  this  Government,  it  seemed  to  be 
the  duty  of  this  court,  when  exercising  its  appellate  power,  to  show 
plainly  the  grave  errors  into  which  the  State  court  has  fallen,  and 
the  consequences  to  which  they  would  inevitably  lead. 

But  it  can  hardly  be  necessary  to  point  out  the  errors  which 
followed  their  mistaken  view  of  the  jurisdiction  they  might  law- 
fully exercise;  because,  if  there  was  any  defect  of  power  in  the 
commissioner,  or  in  his  mode  of  proceeding,  it  was  for  the  tribunals 
of  the  United  States  to  revise  and  correct  it,  and  not  for  a  State 
court.  And  as  regards  the  decision  of  the  District  Court,  it  had 
exclusive  and  final  jurisdiction  by  the  laws  of  the  United  States; 
and  neither  the  regularity  of  its  proceedings  nor  the  validity  of 
its  sentence  could  be  called  in  question  in  any  other  court,  either 
of  a, State  or  the  United  States,  by  habeas  corpus  or  any  other 
process.  .  .  . 

The  judgment  of  the  Supreme  Court  of  Wisconsin  must  there- 
fore be  reversed  in  each  of  the  cases.  .  .  . 


TEXAS   V.    WHITE.  141 

TEXAS   V.  WRITE  etal 
Supreme  Court  of  the  United  States.     1869. 

[7  Wallace,  700.]^ 

On  original  bill. 

Paschal  and  Merrick,  for  Texas. 

Phillips,  Pike,  Carlisle,  and  Moore,  contra. 

Chase,  C.  J.,  delivered  the  opinion  of  the  court. 

This  is  an  original  suit  in  this  court,  in  which  the  State  of  Texas, 
claiming  certain  bonds  of  the  United  States  as  her  property,  asks 
an  injunction  to  restrain  the  defendants  from  receiving  payment 
from  the  National  government,  and  to  compel  the  surrender  of  the 
bonds  to  the  State.  .  .  . 

It  is  not  to  be  questioned  that  this  court  has  original  jurisdiction 
of  suits  by  States  against  citizens  of  other  States,  or  that  the  States 
entitled  to  invoke  this  jurisdiction  must  be  States  of  the  Union. 
But,  it  is  equally  clear  that  no  such  jurisdiction  has  been  conferred 
upon  this  court  of  suits  by  any  other  political  communities  than 
such  States. 

If,  therefore,  it  is  true  that  the  State  of  Texas  was  not  at  the 
time  of  filing  this  bill,  or  is  not  now,  one  of  the  United  States,  we 
have  no  jurisdiction  of  this  suit,  and  it  is  our  duty  fb  dismiss  it. 

We  are  very  sensible  of  the  magnitude  and  importance  of  this 
question,  of  the  interest  it  excites,  and  of  the  difficulty,  not  to  say 
impossibility,  of  so  disposing  of  it  as  to  satisfy  the  conflicting  judg- 
ments of  men  equally  enlightened,  equally  upright,  and  equally 
patriotic.  But  we  meet  it  in  the  case,  and  we  must  determine  it 
in  the  exercise  of  our  best  judgment,  under  the  guidance  of  the 
Constitution  alone. 

Some  not  unimportant  aid,  however,  in  ascertaining  the  true 
sense  of  the  Constitution,  may  be  derived  from  considering  what 
is  the  correct  idea  of  a  State,  apart  from  any  union  or  confederation 
with  other  States.  The  poverty  of  language  often  compels  the 
employment  of  terms  in  quite  different  significations;  and  of  this 
hardly  any  example  more  signal  is  to  be  found  than  in  the  use  of 
the  word  we  are  now  considering.  It  would  serve  no  useful  pur- 
pose to  attempt  an  enumeration  of  all  the  various  senses  in  which 
it  is  used.     A  few  only  need  be  noticed. 

*  The  statement  has  not  been  reprinted.  —  Ed. 


142  i'EDERAL   GOVERNMENT. 

It  describes  sometimes  a  people  or  community  of  individuals 
united  more  or  less  closely  in  political  relations,  inhabiting  tem- 
porarily or  permanently  the  same  country;  often  it  denotes  only 
the  country  or  territorial  region,  inhabited  by  such  a  community; 
not  unfrequently  it  is  applied  to  the  government  under  which  the 
people  live;  at  other  times  it  represents  the  combined  idea  of 
people,  territory,  and  government. 

It  is  not  difficult  to  see  that  in  all  these  senses  the  primary  con- 
ception is  that  of  a  people  or  community.  The  people,  in  what- 
ever territory  dwelling,  either  temporarily  or  permanently,  and 
whether  organized  under  a  regular  government,  or  united  by 
looser  and  less  definite  relations,  constitute  the  state. 

This  is  undoubtedly  the  fundamental  idea  upon  which  the 
republican  institutions  of  our  own  country  are  established.  It 
was  stated  very  clearly  by  an  eminent  judge,^  in  one  of  the  earliest 
cases  adjudicated  by  this  court,  and  we  are  not  aware  of  anything, 
in  any  subsequent  decision,  of  a  different  tenor. 

In  the  Constitution  the  term  state  most  frequently  expresses 
the  combined  idea  just  noticed,  of  people,  territory,  and  govern- 
ment. A  state,  in  the  ordinary  sense  of  the  Constitution,  is  a 
political  community  of  free  citizens,  occupying  a  territory  of  de- 
fined boundaries,  and  organized  under  a  government  sanctioned 
and  limited  by  a  written  constitution,  and  established  by  the  con- 
sent of  the  governed.  It  is  the  union  of  such  states,  under  a  com- 
mon constitution,  which  forms  the  distinct  and  greater  political 
unit,  which  that  Constitution  designates  as  the  United  States,  and 
makes  of  the  people  and  states  which  compose  it  one  people  and 
one  country. 

The  use  of  the  word  in  this  sense  hardly  requires  further  remark. 
In  the  clauses  which  impose  prohibitions  upon  the  States  in  respect 
to  the  making  of  treaties,  emitting  of  bills  of  credit,  and  laying 
duties  of  tonnage,  and  which  guarantee  to  the  States  representa- 
tion in  the  House  of  Representatives  and  in  the  Senate,  are  found 
some  instances  of  this  use  in  the  Constitution.  Others  will  occur 
to  every  mind. 

But  it  is  also  used  in  its  geographical  sense,  as  in  the  clauses 
which  require  that  a  representative  in  Congress  shall  be  an  in- 
habitant of  the  State  in  which  he  shall  be  chosen,  and  that  the 
trial  of  crimes  shall  be  held  within  the  State  where  committed. 

*  Mr.  Justice  Paterson,  in  Penhallow  v.  Doane's  Admrs.,  3  Dallas,  93. 
—  Rep. 


TEXAS   V.    WHITE.  143 

And  there  are  instances  in  which  the  principal  sense  of  the  word 
seems  to  be  that  primary  one  to  which  we  have  adverted,  of  a 
people  or  political  community,  as  distinguished  from  a  govern- 
ment. 

In  this  latter  sense  the  word  seems  to  be  used  in  the  clause  which 
provides  that  the  United  States  shall  guarantee  to  every  State  in 
the  Union  a  republican  form  of  government,  and  shall  protect  each 
of  them  against  invasion. 

In  this  clause  a  plain  distinction  is  made  between  a  State  and 
the  government  of  a  State. 

Having  thus  ascertained  the  senses  in  which  the  word  state  is 
employed  in  the  Constitution,  we  will  proceed  to  consider  the 
proper  application  of  what  has  been  said. 

The  Republic  of  Texas  was  admitted  into  the  Union,  as  a  State, 
on  the  27th  of  December,  1845.  By  this  act  the  new  State,  and 
the  people  of  the  new  State,  were  invested  with  all  the  rights,  and 
became  subject  to  all  the  responsibilities  and  duties  of  the  original 
States  under  the  Constitution. 

From  the  date  of  admission,  until  1861,  the  State  was  repre- 
sented in  the  Congress  of  the  United  States  by  her  senators  and 
representatives,  and  her  relations  as  a  member  of  the  Union  re- 
mained unimpaired.  In  that  year,  acting  upon  the  theory  that 
the  rights  of  a  State  under  the  Constitution  might  be  renounced, 
and  her  obligations  thrown  off  at  pleasure,  Texas  undertook  to 
sever  the  bond  thus  formed,  and  to  break  up  her  constitutional 
relations  with  the  United  States.  .  .  . 

It  is  needless  to  discuss,  at  length,  the  question  whether  the 
right  of  a  State  to  withdraw  from  the  Union  for  any  cause,  re- 
garded by  herself  as  sufficient,  is  consistent  with  the  Constitution 
of  the  United  States. 

The  Union  of  the  States  never  was  a  purely  artificial  and  arbi- 
trary relation.  It  began  among  the  Colonies,  and  grew  out  of 
common  origin,  mutual  sympathies,  kindred  principles,  similar 
interests,  and  geographical  relations.  It  was  confirmed  and 
strengthened  by  the  necessities  of  war,  and  received  definite  form, 
and  character,  and  sanction  from  the  Articles  of  Confederation. 
By  these  the  Union  was  solemnly  declared  to  "  be  perpetual."  And 
when  these  Articles  were  found  to  be  inadequate  to  the  exigencies 
of  the  country,  the  Constitution  was  ordained  "  to  form  a  more 
perfect  Union."  It  is  difficult  to  convey  the  idea  of  indissoluble 
unity  more  clearly  than  by  these  words.  What  can  be  indissolu- 
ble if  a  perpetual  Union,  made  more  perfect,  is  not  ? 


144  FEDERAL   GOVERNMENT. 

But  the  perpetuity  and  indissolubility  of  the  Union,  by  no  means 
implies  the  loss  of  distinct  and  individual  existence,  or  of  the  right 
of  self-government  by  the  States.  Under  the  Articles  of  Confed- 
eration each  State  retained  its  sovereignty,  freedom,  and  inde- 
pendence, and  every  power,  jurisdiction,  and  right  not  expressly 
delegated  to  the  United  States.  Under  the  Constitution,  though 
the  powers  of  the  States  were  much  restricted,  still,  all  powers  not 
delegated  to  the  United  States,  nor  prohibited  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people.  And  we  have 
already  had  occasion  to  remark  at  this  term,  that  "  the  people  of 
each  State  compose  a  State,  having  its  own  government,  and  en- 
dowed with  all  the  functions  essential  to  separate  and  independent 
existence,"  and  that  "  without  the  States  in  union,  there  could 
be  no  such  political  body  as  the  United  States."  Not  only, 
therefore,  can  there  be  no  loss  of  separate  and  independent  auton- 
omy to  the  States,  through  their  union  under  the  Constitution, 
but  it  may  be  not  unreasonably  said  that  the  preservation  of  the 
States,  and  the  maintenance  of  their  governments,  are  as  much 
within  the  design  and  care  of  the  Constitution  as  the  preservation 
of  the  Union  and  the  maintenance  of  the  National  government. 
The  Constitution,  in  all  its  provisions,  looks  to  an  indestructible 
Union,  composed  of  indestructible  States. 

When,  therefore,  Texas  became  one  of  the  United  States,  she 
entered  into  an  indissoluble  relation.  All  the  obligations  of  per- 
petual union,  and  all  the  guaranties  of  republican  government  in 
the  Union,  attached  at  once  to  the  State.  The  act  which  con- 
summated her  admission  into  the  Union  was  something  more  than 
a  compact;  it  was  the  incorporation  of  a  new  member  into  the 
political  body.  And  it  was  final.  The  union  between  Texas  and 
the  other  States  was  as  complete,  as  perpetual,  and  as  indissoluble 
as  the  union  between  the  original  States.  There  was  no  place  for 
reconsideration,  or  revocation,  except  through  revolution,  or 
through  consent  of  the  States. 

Considered  therefore  as  transactions  under  the  Constitution, 
the  ordinance  of  secession,  adopted  by  the  convention  and  ratified 
by  a  majority  of  the  citizens  of  Texas,  and  all  the  acts  of  her  legis- 
lature intended  to  give  effect  to  that  ordinance,  were  absolutely 
null.  They  were  utterly  without  operation  in  law.  The  obliga- 
tions of  the  State,  as  a  member  of  the  Union,  and  of  every  citizen 
of  the  State,  as  a  citizen  of  the  United  States,  remained  perfect  and 
unimpaired.     It  certainly  follows  that  the  State  did  not  cease  to 


TEXAS   V.    WHITE.  145 

be  a  State,  nor  her  citizens  to  be  citizens  of  the  Union.  If  this 
were  otherwise,  the  State  must  have  become  foreign,  and  her 
citizens  foreigners.  The  war  must  have  ceased  to  be  a  war  for  the 
suppression  of  rebelHon,  and  must  have  become  a  war  for  conquest 
and  subjugation. 

Our  conclusion,  therefore,  is  that  Texas  continued  to  be  a  State, 
and  a  State  of  the  Union,  notwithstanding  the  transactions  to 
which  we  have  referred.  And  this  conclusion,  in  our  judgment, 
is  not  in  conflict  with  any  act  or  declaration  of  any  department 
of  the  National  government,  but  entirely  in  accordance  with  the 
whole  series  of  such  acts  and  declarations  since  the  first  outbreak 
of  the  rebeUion. 

But  in  order  to  the  exercise,  by  a  State,  of  the  right  to  sue  in 
this  court,  there  needs  to  be  a  State  government,  competent  to 
represent  the  State  in  its  relations  with  the  National  government, 
so  far  at  least  as  the  institution  and  prosecution  of  a  suit  is  con- 
cerned. 

And  it  is  by  no  means  a  logical  conclusion,  from  the  premises 
which  we  have  endeavored  to  establish,  that  the  governmental 
relations  of  Texas  to  the  Union  remained  unaltered.  Obligations 
often  remain  unimpaired,  while  relations  are  greatly  changed. 
The  obligations  of  allegiance  to  the  State,  and  of  obedience  to  her 
laws  subject  to  the  Constitution  of  the  United  States,  are  binding 
upon  all  citizens,  whether  faithful  or  unfaithful  to  them;  but  the 
relations  which  subsist  while  these  obligations  are  performed,  are 
essentially  different  from  those  which  arise  when  they  are  disre- 
garded and  set  at  nought.  And  the  same  must  necessarily  be  true 
of  the  obligations  and  relations  of  States  and  citizens  to  the  Union. 
No  one  has  been  bold  enough  to  contend  that,  while  Texas  was 
controlled  by  a  government  hostile  to  the  United  States,  and  in 
affiliation  with  a  hostile  confederation,  waging  war  upon  the 
United  States,  senators  chosen  by  her  legislature,  or  representa- 
tives elected  by  her  citizens,  were  entitled  to  seats  in  Congress; 
or  that  any  suit,  instituted  in  her  name,  could  be  entertained  in 
this  court.  All  admit  that,  during  this  condition  of  civil  war,  the 
rights  of  the  State  as  a  member,  and  of  her  people  as  citizens  of 
the  Union,  were  suspended.  The  government  and  the  citizens  of 
the  State,  refusing  to  recognize  their  constitutional  obligations, 
assumed  the  character  of  enemies,  and  incurred  the  consequences 
of  rebellion. 


146  FEDERAL   GOVERNMENT. 

These  new  relations  imposed  new  duties  upon  the  United  States. 
The  first  was  that  of  suppressing  the  rebelhon.  The  next  was 
that  of  re-estabhshing  the  broken  relations  of  the  State  with  the 
Union,  The  first  of  these  duties  having  been  performed,  the 
next  necessarily  engaged  the  attention  of  the  National  govern- 
ment. 

The  authority  for  the  performance  of  the  first  had  been  found 
in  the  power  to  suppress  insurrection  and  carry  on  war;  for  the 
performance  of  the  second,  authority  was  derived  from  the  obli- 
gation of  the  United  States  to  guarantee  to  every  State  in  the 
Union  a  republican  form  of  government.  The  latter,  indeed,  in 
the  case  of  a  rebellion  which  involves  the  government  of  a  State, 
and  for  the  time  excludes  the  National  authority  from  its  limits, 
seems  to  be  a  necessary  compliment  to  the  former. 

Of  this,  the  case  of  Texas  furnishes  a  striking  illustration.  When 
the  war  closed  there  was  no  government  in  the  State  except 
that  which  had  been  organized  for  the  purpose  of  waging  war 
against  the  United  States.  That  government  immediately  dis- 
appeared. .  .  . 

There  being  then  no  government  in  Texas  in  constitutional 
relations  with  the  Union,  it  became  the  duty  of  the  United  States 
to  provide  for  the  restoration  of  such  a  government.  But  the 
restoration  of  the  government  which  existed  before  the  rebellion, 
without  a  new  election  of  officers,  was  obviously  impossible;  and 
before  any  such  election  could  be  properly  held,  it  was  necessary 
that  the  old  constitution  should  receive  such  amendments  as  would 
conform  its  provisions  to  the  new  conditions  created  by  emanci- 
pation, and  afford  adequate  security  to  the  people  of  the  State.  .  .  . 

Almost  immediately  after  the  cessation  of  organized  hostilities, 
and  while  the  war  yet  smouldered  in  Texas,  the  President  of  the 
United  States  issued  his  proclamation  appointing  a  provisional 
governor  for  the  State,  and  providing  for  the  assembling  of  a  con- 
vention, with  a  view  to  the  re-establishment  of  a  republican  govern- 
ment, under  an  amended  constitution,  and  to  the  restoration  of 
the  State  to  her  proper  constitutional  relations.  A  convention 
was  accordingly  assembled,  the  constitution  amended,  elections 
held,  and  a  State  government,  acknowledging  its  obligations  to 
the  Union,  established. 

Whether  the  action  then  taken  was,  in  all  respects,  warranted 
by  the  Constitution,  it  is  not  now  necessary  to  determine.  The 
power  exercised  by  the  President  was  supposed,  doubtless,  to  be 
derived  from  his  constitutional  functions,  as  commander-in-chief; 


TEXAS   V.    WHITE.  147 

and,  so  long  as  the  war  continued,  it  cannot  be  denied  that  he 
might  institute  temporary  government  within  insurgent  districts, 
occupied  by  the  National  forces,  or  take  measures,  in  any  State, 
for  the  restoration  of  State  government  faithful  to  the  Union, 
employing,  however,  in  such  efforts,  only  such  means  and  agents 
as  were  authorized  by  constitutional  laws. 

But,  the  power  to  carry  into  effect  the  clause  of  guaranty  is 
primarily  a  legislative  power,  and  resides  in  Congress.  .  .  . 

The  action  of  the  President  must,  therefore,  be  considered  as 
provisional,  and,  in  that  light,  it  seems  to  have  been  regarded  by 
Congress.  It  was  taken  after  the  term  of  the  38th  Congress  had 
expired.  The  39th  Congress,  which  assembled  in  December, 
1865,  followed  by  the  40th  Congress,  which  met  in  March,  1867, 
proceeded,  after  long  deliberation,  to  adopt  various  measures  for 
reorganization  and  restoration.  These  measures  were  embodied 
in  proposed  amendments  to  the  Constitution,  and  in  the  acts 
known  as  the  Reconstruction  Acts,  which  have  been  so  far  carried 
into  effect,  that  a  majority  of  the  States  which  were  engaged  in 
the  rebellion  have  been  restored  to  their  constitutional  relations, 
under  forms  of  government,  adjudged  to  be  republican  by  Con- 
gress, through  the  admission  of  their  "  Senators  and  Representa- 
tives into  the  councils  of  the  Union."  .  .  . 

What  has  thus  been  said  generally  describes,  with  sufficient 
accuracy,  the  situation  of  Texas.  A  provisional  governor  of  the 
State  was  appointed  by  the  President  in  1865;  in  1866  a  governor 
was  elected  by  the  people  under  the  constitution  of  that  year ;  at 
a  subsequent  date  a  governor  was  appointed  by  the  commander 
of  the  district.  Each  of  the  three  exercised  executive  functions 
and  actually  represented  the  State  in  the  executive  department. 

In  the  case  before  us  each  has  given  his  sanction  to  the  prosecu- 
tion of  the  suit.  .  .  . 

On  the  whole  case,  therefore,  our  conclusion  is  that  the  State  of 
Texas  is  entitled  to  the  relief  sought  by  her  bill,  and  a  decree  must 
be  made  accordingly. 

Grier,  J.,  dissenting. 

I  regret  that  I  am  compelled  to  dissent  from  the  opinion  of  the 
majority  of  the  court  on  all  the  points.  .  .  . 

SwAYNE,  J.  I  concur  with  my  brother  Grier  as  to  the  incapa- 
city of  the  State  of  Texas,  in  her  present  condition,  to  maintain 
an  original  suit  in  this  court.     The  question,  in  my  judgment,  is 


148  FEDERAL   GOVERNMENT. 

one  in  relation  to  which  this  court  is  bound  by  the  action  of  the 
legislative  department  of  the  government. 

Upon  the  merits  of  the  case,  I  agree  with  the  majority  of  my 
brethren. 

I  am  authorized  to  say  that  my  brother  Miller  unites  with  me 
in  these  views. 


THE  COLLECTOR  v.   DAY. 
Supreme  Court  of  the  United  States.     1870. 

[11  Wallace,  113.]  i 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Massachusetts. 

Congress  having  passed  laws  for  taxing  incomes,  the  collector 
of  internal  revenue  collected  this  tax  upon  the  official  salary  of 
Day,  a  judge  of  the  Court  of  Probate  for  the  County  of  Barnstable, 
State  of  Massachusetts;  and  therefore  Day,  who  had  paid  the  tax 
under  protest,  brought  this  action  to  recover  it.  The  case  was 
submitted  on  an  agreed  statement  of  facts;  and  judgment  was 
given  for  the  plaintiff. 

Akerman,  Attorney  General,  and  Ropes,  for  the  plaintiff  in  error; 
and  Dwight  Foster,  contra. 

Nelson,  J.,  delivered  the  opinion  of  the  court. 

The  case  presents  the  question  whether  or  not  it  is  competent 
for  Congress,  under  the  Constitution  of  the  United  States,  to  im- 
pose a  tax  upon  the  salary  of  a  judicial  officer  of  a  State. 

In  Dobbins  v.  The  Commissioners  of  Erie  County,  16  Peters, 
435,  it  was  decided  that  it  was  not  competent  for  the  legislature 
of  a  State  to  levy  a  tax  upon  the  salary  or  emoluments  of  an  officer 
of  the  United  States.  The  decision  was  placed  mainly  upon  the 
ground  that  the  officer  was  a  means  or  instrumentality  employed 
for  carrying  into  effect  some  of  the  legitimate  powers  of  the  govern- 
ment, which  could  not  be  interfered  with  by  taxation  or  otherwise 
by  the  States,  and  that  the  salary  or  compensation  for  the  service 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


THE    COLLECTOR   V.    DAY.  149 

of  the  officer  was  inseparably  connected  with  the  office;  that  if  the 
officer,  as  such,  was  exempt,  the  salary  assigned  for  his  support  or 
maintenance  while  holding  the  office  was  also,  for  like  reasons, 
equally  exempt.  .  .  . 

It  is  conceded  in  the  case  of  McCulloch  v.  Maryland,  4  Wheaton, 
316,  that  the  power  of  taxation  by  the  States  was  not  abridged  by 
the  grant  of  a  similar  power  to  the  government  of  the  Union;  that 
it  was  retained  by  the  States,  and  that  the  power  is  to  be  concur- 
rently exercised  by  the  two  governments;  and  also  that  there  is 
no  express  constitutional  prohibition  upon  the  States  against  tax- 
ing the  means  or  instrumentalities  of  the  general  government. 
But,  it  was  held,  and,  we  agree  properly  held,  to  be  prohibited  by 
necessary  implication;  otherwise,  the  States  might  impose  taxa- 
tion to  an  extent  that  would  impair,  if  not  wholly  defeat,  the 
operations  of  the  Federal  authorities  when  acting  in  their  appro- 
priate sphere.  .  .  . 

It  is  a  familiar  rule  of  construction  of  the  Constitution  of  the 
Union,  that  the  sovereign  powers  vested  in  the  State  governments 
by  their  respective  constitutions,  remained  unaltered  and  un- 
impaired, except  so  far  as  they  were  granted  to  the  government 
of  the  United  States.  That  the  intention  of  the  framers  of  the 
Constitution  in  this  respect  might  not  be  misunderstood,  this  rule 
of  interpretation  is  expressly  declared  in  the  tenth  article  of  the 
amendments,  namely:  "  The  powers  not  delegated  to  the  United 
States  are  reserved  to  the  States  respectively,  or  to  the  people." 
The  government  of  the  United  States,  therefore,  can  claim  no 
powers  which  are  not  granted  to  it  by  the  Constitution,  and  the 
powers  actually  granted  must  be  such  as  are  expressly  given,  or 
given  by  necessary  implication. 

The  general  government,  and  the  States,  although  both  exist 
within  the  same  territorial  limits,  are  separate  and  distinct  sov- 
ereignties, acting  separately  and  independently  of  each  other, 
within  their  respective  spheres.  The  former  in  its  appropriate 
sphere  is  supreme;  but  the  States  within  the  limits  of  their  powers 
not  granted,  or,  in  the  language  of  the  tenth  amendment,  "  re- 
served," are  as  independent  of  the  general  government  as  that 
government  within  its  sphere  is  independent  of  the  States. 

The  relations  existing  between  the  two  governments  are  well 
stated  by  the  present  Chief  Justice  in  the  case  of  Lane  County  v. 
Oregon,  7  Wallace,  71,  76.  "  Both  the  States  and  the  United 
States,"  he  observed,  "  existed  before  the  Constitution.  The 
people,  through  that  instrument,  established  a  more  perfect  union. 


150  FEDERAL   GOVERNMENT. 

by  substituting  a  National  government,  acting  with  ample  powers 
directly  upon  the  citizens,  instead  of  the  Confederate  government, 
which  acted  with  powers  greatly  restricted,  only  upon  the  States. 
But,  in  many  of  the  articles  of  the  Constitution,  the  necessary 
existence  of  the  States,  and  within  their  proper  spheres,  the  inde- 
pendent authority  of  the  States,  are  distinctly  recognized.  To 
them  nearly  the  whole  charge  of  interior  regulation  is  committed 
or  left;  to  them,  and  to  the  people,  all  powers,  not  expressly  dele- 
gated to  the  National  government,  are  reserved."  Upon  looking 
into  the  Constitution  it  will  be  found  that  but  a  few  of  the  articles 
in  that  instrument  could  be  carried  into  practical  effect  without 
the  existence  of  the  States.  .  .  . 

Judgment  affirmed. 

Bradley,  J.,  dissenting. 

I  dissent  from  the  opinion  of  the  court  in  this  case,  because,  it 
seems  to  me  that  the  general  government  has  the  same  power  of 
taxing  the  income  of  officers  of  the  State  governments  as  it  has  of 
taxing  that  of  its  o^vn  officers.  It  is  the  common  government 
of  all  alike ;  and  every  citizen  is  presumed  to  trust  his  own  govern- 
ment in  the  matter  of  taxation.  No  man  ceases  to  be  a  citizen  of 
the  United  States  by  being  an  officer  under  the  State  government. 
I  cannot  accede  to  the  doctrine  that  the  general  government  is  to 
be  regarded  as  in  any  sense  foreign  or  antagonistic  to  the  State 
governments,  their  officers,  or  people;  nor  can  I  agree  that  a  pre- 
sumption can  be  admitted  that  the  general  government  will  act 
in  a  manner  hostile  to  the  existence  or  functions  of  the  State  gov- 
ernment, which  are  constituent  parts  of  the  system  or  body 
politic  forming  the  basis  on  which  the  general  government  is 
founded.  The  taxation  by  the  State  governments  of  the  instru- 
ments employed  by  the  general  government  in  the  exercise  of  its 
powers,  is  a  very  different  thing.  Such  taxation  involves  an  inter- 
ference with  the  powers  of  a  government  in  which  other  States 
and  their  citizens  are  equally  interested  with  the  State  which  im- 
poses the  taxation.  In  my  judgment,  the  limitation  of  the  power 
of  taxation  in  the  general  government,  which  the  present  decision 
establishes,  will  be  found  very  difficult  of  control.  Where  are  we 
to  stop  in  enumerating  the  functions  of  the  State  governments 
which  will  be  interfered  with  by  Federal  taxation  ?  If  a  State 
incorporates  a  railroad  to  carry  out  its  purposes  of  internal  im- 
provement, or  a  bank  to  aid  its  financial  arrangements,  reserving, 
perhaps,  a  percentage  on  the  stock  or  profits,  for  the  supply  of  its 
own  treasury,  will  the  bonds  or  stock  of  such  an  institution  be 


KOHL   V.    UNITED   STATES.  151 

free  from  Federal  taxation  ?  How  can  we  now  tell  what  the  effect 
of  this  decision  will  be  ?  I  cannot  but  regard  it  as  founded  on  a 
fallacy,  and  that  it  will  lead  to  mischievous  consequences.  I  am 
as  much  opposed  as  any  one  can  be  to  any  interference  by  the 
general  government  with  the  just  powers  of  the  State  governments. 
But  no  concession  of  any  of  the  just  powers  of  the  general  govern- 
ment can  easily  be  recalled.  I,  therefore,  consider  it  my  duty  to 
at  least  record  my  dissent  when  such  concession  appears  to  be 
made.  An  extended  discussion  of  the  subject  would  answer  no 
useful  purpose. 


KOHL  et  al.  v.  UNITED  STATES. 
Supreme  Court  of  the  United  States.     1875. 

[91  United  States,  ZQ,7.\^ 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 

This  was  a  proceeding  instituted  by  the  United  States  to  appro- 
priate land  in  the  city  of  Cincinnati  as  a  site  for  a  post-office  and 
other  public  uses,  in  accordance  with  Acts  of  Congress  of  March 
2,  1872,  June  10,  1872,  and  March  3,  1873.  A  motion  to  dismiss 
for  want  of  jurisdiction  was  overruled,  and  after  exception  to  this 
and  another  ruhng,  judgment  was  rendered  for  the  United  States. 

Kittredge,  for  plaintiffs  in  error. 

Smith,  Assistant  Attorney  General,  contra. 

Strong,  J.,  delivered  the  opinion  of  the  court. 

It  has  not  been  seriously  contended  during  the  argument  that 
the  United  States  government  is  without  power  to  appropriate 
lands  or  other  property  within  the  States  for  its  owti  uses,  and 
to  enable  it  to  perform  its  proper  functions.  Such  an  authority 
is  essential  to  its  independent  existence  and  perpetuity.  These 
cannot  be  preserved  if  the  obstinacy  of  a  private  person,  or  if  any 
other  authority,  can  prevent  the  acquisition  of  the  means  or  in- 
struments by  which  alone  governmental  functions  can  be  per- 
formed. The  powers  vested  by  the  Constitution  in  the  general 
government  demand  for  their  exercise  the  acquisition  of  lands  in 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


152  FEDERAL   GOVERNMENT. 

all  the  States.  These  are  needed  for  forts,  armories,  and  arsenals, 
for  navy-yards  and  light-houses,  for  custom-houses,  post-offices, 
and  court-houses,  and  for  other  public  uses.  If  the  right  to  ac- 
quire property  for  such  uses  may  be  made  a  barren  right  by  the 
unwilUngness  of  property-holders  to  sell,  or  by  the  action  of  a 
State  prohibiting  a  sale  to  the  Federal  government,  the  constitu- 
tional grants  of  power  may  be  rendered  nugatory,  and  the  govern- 
ment is  dependent  for  its  practical  existence  upon  the  will  of  a 
State,  or  even  upon  that  of  a  private  citizen.  This  cannot  be. 
No  one  doubts  the  existence  in  the  State  governments  of  the  right 
of  eminent  domain,  —  a  right  distinct  from  and  paramount  to  the 
right  of  ultimate  ownership.  It  grows  out  of  the  necessities  of 
their  being,  not  out  of  the  tenure  by  which  lands  are  held.  It 
may  be  exercised,  though  the  lands  are  not  held  by  grant  from  the 
government,  either  mediately  or  immediately,  and  independent 
of  the  consideration  whether  they  would  escheat  to  the  govern- 
ment in  case  of  a  failure  of  heirs.  The  right  is  the  offspring  of 
political  necessity;  and  it  is  inseparable  from  sovereignty,  unless 
denied  to  it  by  its  fundamental  law.  Vattel,  c.  20,  34;  Bynk., 
lib.  2,  c.  15;  Kent's  Com.,  338-340;  Cooley  on  Const.  Lim.,  584 
et  seq.  But  it  is  no  more  necessary  for  the  exercise  of  the  powers 
of  a  State  government  than  it  is  for  the  exercise  of  the  conceded 
powers  of  the  Federal  government.  That  government  is  as  sov- 
ereign within  its  sphere  as  the  States  are  within  theirs.  True,  its 
sphere  is  limited.  Certain  subjects  only  are  committed  to  it:  but 
its  power  over  those  subjects  is  as  full  and  complete  as  is  the  power 
of  the  States  over  the  subjects  to  which  their  sovereignty  extends. 
The  power  is  not  changed  by  its  transfer  to  another  holder. 

But,  if  the  right  of  eminent  domain  exists  in  the  Federal  gov- 
ernment, it  is  a  right  which  may  be  exercised  within  the  States, 
so  far  as  is  necessary  to  the  enjoyment  of  the  powers  conferred 
upon  it  by  the  Constitution.  In  Ableman  v.  Booth,  21  How.  623, 
Chief  Justice  Taney  described  in  plain  language  the  complex 
nature  of  our  government,  and  the  existence  of  two  distinct  and 
separate  sovereignties  within  the  same  territorial  space,  each  of 
them  restricted  in  its  powers,  and  each,  within  its  sphere  of  action 
prescribed  by  the  Constitution  of  the  United  States,  independent 
of  the  other.  Neither  is  under  the  necessity  of  applying  to  the 
other  for  permission  to  exercise  its  lawful  powers.  Within  its 
own  sphere,  it  may  employ  all  the  agencies  for  exerting  them 
which  are  appropriate  or  necessary,  and  which  are  not  forbidden 
by  the  law  of  its  being.     When  the  power  to  establish  post-offices 


KOHL   V.    UNITED    STATES.  153 

and  to  create  courts  within  the  States  was  conferred  upon  the 
Federal  government,  included  in  it  was  authority  to  obtain  sites 
for  such  offices  and  for  court-houses,  and  to  obtain  them  by  such 
means  as  were  known  and  appropriate.  The  right  of  eminent 
domain  was  one  of  those  means  well  known  When  the  Constitution 
was  adopted,  and  employed  to  obtain  lands  for  public  uses.  Its 
existence,  therefore,  in  the  grantee  of  that  power,  ought  not  to  be 
questioned.  The  Constitution  itself  contains  an  implied  recogni- 
tion of  it  beyond  what  may  justly  be  implied  from  the  express 
grants.  The  fifth  amendment  contains  a  provision  that  private 
property  shall  not  be  taken  for  public  use  without  just  compensa- 
tion. What  is  that  but  an  implied  assertion,  that,  on  making 
just  compensation,  it  may  be  taken  ?  .  .  . 

It  is  true,  this  power  of  the  Federal  government  has  not  hereto- 
fore been  exercised  adversely;  but  the  non-user  of  a  power  does 
not  disprove  its  existence.  In  some  instances,  the  States,  by 
virtue  of  their  own  right  of  eminent  domain,  have  condemned 
lands  for  the  use  of  the  general  government,  and  such  condemna- 
tions have  been  sustained  by  their  courts,  without,  however, 
denying  the  right  of  the  United  States  to  act  independently  of  the 
States.  Such  was  the  ruling  in  Gilmer  v.  Lime  Point,  18  Cal.  229, 
where  lands  were  condemned  by  a  proceeding  in  a  State  court  and 
under  a  State  law  for  a  United  States  fortification.  A  similar 
decision  was  made  in  Burt  v.  The  Merchants'  Ins.  Co.,  106  Mass. 
356,  where  land  was  taken  under  a  State  law  as  a  site  for  a  post- 
office  and  sub-treasury  building.  Neither  of  these  cases  denies 
the  right  of  the  Federal  government  to  have  lands  in  the  States 
condemned  for  its  uses  under  its  own  power  and  by  its  own  action. 
The  question  was  whether  the  State  could  take  lands  for  any  other 
public  use  than  that  of  the  State.  In  Trombley  v.  Humphrey, 
23  Mich.  471,  a  different  doctrine  was  asserted,  founded,  we  think, 
upon  better  reason.  The  proper  view  of  the  right  of  eminent 
domain  seems  to  be,  that  it  is  a  right  belonging  to  a  sovereignty 
to  take  property  for  its  own  public  uses,  and  not  for  those  for 
another.  Beyond  that,  there  exists  no  necessity;  which  alone  is 
the  foundation  of  the  right.  If  the  United  States  have  the  power, 
it  must  be  complete  in  itself.  It  can  neither  be  enlarged  nor 
diminished  by  a  State.  Nor  can  any  State  prescribe  the  manner 
in  which  it  must  be  exercised.  The  consent  of  a  State  can  never 
be  a  condition  precedent  to  its  enjoyment.  Such  consent  is 
needed  only,  if  at  all,  for  the  transfer  of  jurisdiction  and  of  the 
right  of  exclusive  legislation  after  the  land  shall  have  been  acquired. 


154  FEDERAL   GOVERNMENT. 

It  may,  therefore,  fairly  be  concluded  that  the  proceeding  in 
the  case  we  have  in  hand  was  a  proceeding  by  the  United  States 
government  in  its  own  right,  and  by  virtue  of  its  own  eminent 
domain.  .  .  . 

The  judgment  of  the  Circuit  Court  is  affirmed.^ 

Field,  J.,  dissenting.  .  .  . 

The  Federal  courts  have  no  inherent  jurisdiction  of  a  proceeding 
instituted  for  the  condemnation  of  property ;  and  I  do  not  find  any 
statute  of  Congress  conferring  upon  them  such  authority.  .  .  . 


CLAFLIN  V.  HOUSEMAN,  Assignee. 
Supreme  Court  of  the  United  States.     1876. 

[93  United  States,  130.]  2 

'  Error  to  the  Supreme  Court  of  New  York. 

In  the  Supreme  Court  of  New  York  for  the  County  of  Kings, 
action  was  brought  by  an  assignee  in  bankruptcy,  under  the  Bank- 
rupt Act  of  the  United  States,  of  1867,  to  recover  money  obtained 
on  a  judgment  which  had  been  taken  against  the  bankrupt  by 
default  within  four  months  before  the  proceedings  in  bankruptcy, 
the  intent  of  the  bankrupt  having  been,  as  alleged,  to  give  a 
preference  in  fraud  of  the  Act.  The  defendant  demurred  to  the 
complaint,  one  ground  being  that  the  court  had  no  jurisdiction  of 
the  subject  of  the  action.  Judgment  having  been  rendered  for 
the  plaintiff  and  having  been  affirmed  both  by  the  General  Term 
and  by  the  Court  of  Appeals,  the  judgment  was  brought  before 
the  Supreme  Court  of  the  United  States  by  writ  of  error  under 
the  second  section  of  the  Act  of  Feb.  5,  1867  (14  U.  S.  Stats,  at 
Large,  385). 

W.  H.  Arnoux,  for  plaintiff  in  error. 

B.  F.  Lee,  for  defendant  in  error. 

1  See  United  States  v.  Jones,  109  U.  S.  513  (1883);  Luxton  v.  North  River 
Bridge  Co.,  153  U.  S.  525  (1894).  —  Ed. 

*  An  abbreviated  statement  has  been  presented.  —  Ed. 


CLAFLIN   V.    HOUSEMAN.  155 

Bradley,  J.,  delivered  the  opinion  of  the  court. 

The  point  principally  relied  on  by  the  plaintiff  in  error  is,  that 
an  assignee  in  bankruptcy  cannot  sue  in  the  State  courts. 

It  is  argued  that  the  cause  of  action  arises  purely  and  solely  out 
of  the  provisions  of  an  act  of  Congress,  and  can  only  be  prosecuted 
in  the  courts  of  the  United  States,  the  State  courts  having  no 
jurisdiction  over  the  subject.  .  .  . 

The  assignee,  by  the  fourteenth  section  of  the  Bankrupt  Act 
(Rev.  Stat.,  sect.  5046),  becomes  invested  with  all  the  bankrupt's 
rights  of  action  for  property,  and  actions  arising  from  contract, 
or  the  unlawful  taking  or  detention  of  or  injury  to  property,  and 
a  right  to  sue  for  the  same.  The  actions  which  lie  in  such  cases 
are  common-law  actions,  ejectment,  trespass,  trover,  assumpsit, 
debt,  etc.,  or  suits  in  equity.  Of  these  actions  and  suits  the  State 
courts  have  cognizance.  Why  should  not  an  asignee  have  power 
to  bring  them  in  those  courts,  as  well  as  other  persons  ?  Aliens 
and  foreign  corporations  may  bring  them.  The  assignee  simply 
derives  his  title  through  a  law  of  the  United  States.  Should  not 
that  title  be  respected  by  the  State  courts  ? 

The  case  is  exactly  the  same  as  that  of  the  Bank  of  the  United 
States.  The  first  bank,  chartered  in  1791,  had  capacity  given 
it  "  to  sue  and  be  sued  ...  in  courts  of  record,  or  any  other  place 
whatsoever."  It  was  held,  in  The  Bank  v.  Deveaux,  5  Cranch, 
61,  that  this  did  not  authorize  the  bank  to  sue  in  the  courts  of  the 
United  States,  without  showing  proper  citizenship  of  the  parties 
in  different  States.  The  bank  was  obliged  to  sue  in  the  State 
courts.  And  yet  here  was  a  right  arising  under  a  law  of  the  United 
States,  as  much  so  as  can  be  affirmed  of  a  case  of  an  assignee  in 
bankruptcy.  The  second  bank  of  the  United  States  had  express 
capacity  "  to  sue  and  be  sued  in  all  State  courts  having  competent 
jurisdiction,  and  in  any  Circuit  Court  of  the  United  States."  In 
the  case  of  Osborn  v.  The  Bank,  9  Wheat.  738,  815,  it  was  objected 
that  Congress  had  not  authority  to  enable  the  bank  to  sue  in  the 
Federal  courts  merely  because  of  its  being  created  by  an  act  of 
Congress.  But  the  court  held  otherwise,  and  sustained  its  right 
to  sue  therein.  No  question  was  made  of  its  right  to  sue  in  the 
State  courts. 

Under  the  bankrupt  law  of  1841,  with  substantially  the  same 
provisions  on  this  subject  as  the  present  law,  it  was  held  that  the 
assignee  could  sue  in  the  State  courts.  Ex  parte  Christie,  3  How. 
318,319;  Nugent  v.  Boyd,  ibid.  426;  Wood  v.  Jenkins,  10  Met. 
583. 


156  FEDERAL   GOVERNMENT. 

Other  analogous  cases  have  occurred,  and  the  same  result  has 
been  reached;  the  general  principle  being,  that,  where  jurisdic- 
tion may  be  conferred  on  the  United  States  courts,  it  may  be 
made  exclusive  where  not  so  by  the  Constitution  itself;  but,  if 
exclusive  jurisdiction  be  neither  express  nor  implied,  the  State 
courts  have  concurrent  jurisdiction  whenever,  by  their  own  con- 
stitution, they  are  competent  to  take  it.  Thus,  the  United  States 
itself  may  sue  in  the  State  courts,  and  often  does  so.  If  this  may 
be  done,  surely,  on  the  principle  that  the  greater  includes  the  less, 
an  officer  or  corporation  created  by  United  States  authority  may 
be  enabled  to  sue  in  such  courts.  Nothing  in  the  Constitution, 
fairly  considered,  forbids  it. 

The  general  question,  whether  State  courts  can  exercise  con- 
current jurisdiction  with  the  Federal  courts  in  cases  arising  under 
the  Constitution,  laws,  and  treaties  of  the  United  States,  has  been 
elaborately  discussed,  both  on  the  bench  and  in  published  trea- 
tises, —  sometimes  with  a  leaning  in  one  direction  and  sometimes 
in  the  other,  —  but  the  result  of  these  discussions  has,  in  our 
judgment,  been,  as  seen  in  the  above  cases,  to  affirm  the  jurisdic- 
tion, where  it  is  not  excluded  by  express  provision,  or  by  incom- 
patibility in  its  exercise  arising  from  the  nature  of  the  particular 
case. 

When  we  consider  the  structure  and  true  relations  of  the  Federal 
and  State  governments,  there  is  really  no  just  foundation  for 
excluding  the  State  courts  from  all  such  jurisdiction. 

The  laws  of  the  United  States  are  laws  in  the  several  States, 
and  just  as  much  binding  on  the  citizens  and  courts  thereof  as 
the  State  laws  are.  The  United  States  is  not  a  foreign  sovereignty 
as  regards  the  several  States,  but  is  a  concurrent,  and,  within  its 
jurisdiction,  paramount  sovereignty.  Every  citizen  of  a  State 
is  a  subject  of  two  distinct  sovereignties,  having  concurrent  juris- 
diction in  the  State,  —  concurrent  as  to  place  and  persons,  though 
distinct  as  to  subject-matter.  Legal  or  equitable  rights,  acquired 
under  either  system  of  laws,  may  be  enforced  in  any  court  of  either 
sovereignty  competent  to  hear  and  determine  such  kinds  of  right 
and  not  restrained  by  its  constitution  in  the  exercise  of  such  juris- 
diction. Thus,  a  legal  or  equitable  right  acquired  under  S  tate  laws, 
may  be  prosecuted  in  the  State  courts,  and  also,  if  the  parties 
reside  in  different  States,  in  the  Federal  courts.  So  rights,  whether 
legal  or  equitable,  acquired  under  the  laws  of  the  United  States, 
may  be  prosecuted  in  the  United  States  courts,  or  in  the  State 
courts,  competent  to  decide  rights  of  the  like  character  and  class; 


CLAFLIN   y.    HOUSEMAN.  157 

subject,  however,  to  this  qualification,  that  where  a  right  arises 
under  a  law  of  the  United  States,  Congress  may,  if  it  see  fit,  give 
to  the  Federal  courts  exclusive  jurisdiction.  See  remarks  of  Mr. 
Justice  Field,  in  The  Moses  Taylor,  4  Wall.  429,  and  Story,  J.,  in 
Martin  v.  Hunter's  Lessee,  1  Wheat.  334;  and  of  Mr.  Justice 
Swayne,  in  Ex  parte  McNeil,  13  Wall.  236.  This  jurisdiction  is 
sometimes  exclusive  by  express  enactment  and  sometimes  by 
implication.  If  an  act  of  Congress  gives  a  penalty  to  a  party 
aggrieved,  without  specifying  a  remedy  for  its  enforcement,  there 
is  no  reason  why  it  should  not  be  enforced,  if  not  provided  other- 
wise by  some  act  of  Congress,  by  a  proper  action  in  a  State  court. 
The  fact  that  a  State  court  derives  its  existence  and  functions 
from  the  State  laws  is  no  reason  why  it  should  not  afford  relief; 
because  it  is  subject  also  to  the  laws  of  the  United  States,  and  is 
just  as  much  bound  to  recognize  these  as  operative  within  the  State 
as  it  is  to  recognize  the  State  laws.  The  two  together  form  one 
system  of  jurisprudence,  which  constitutes  the  law  of  the  land  for 
the  State;  and  the  courts  of  the  two  jurisdictions  are  not  foreign 
to  each  other,  nor  to  be  treated  by  each  other  as  such,  but  as  courts 
of  the  same  country,  having  jurisdiction  partly  different  and 
partly  concurrent.  The  disposition  to  regard  the  laws  of  the 
United  States  as  emanating  from  a  foreign  jurisdiction  is  founded 
on  erroneous  views  of  the  nature  and  relations  of  the  State  and 
Federal  governments.  It  is  often  the  cause  or  the  consequence 
of  an  unjustifiable  jealousy  of  the  United  States  government, 
which  has  been  the  occasion  of  disastrous  evils  to  the  country. 

It  is  true,  the  sovereignties  are  distinct,  and  neither  can  inter- 
fere with  the  proper  jurisdiction  of  the  other,  as  was  so  clearly 
shown  by  Chief  Justice  Taney,  in  the  case  of  Ableman  v.  Booth, 
21  How.  506;  and  hence  the  State  courts  have  no  power  to  revise 
the  action  of  the  Federal  courts,  nor  the  Federal  the  State,  except 
where  the  Federal  Constitution  or  laws  are  involved.  But  this 
is  no  reason  why  the  State  courts  should  not  be  open  for  the  prose- 
cution of  rights  growing  out  of  the  laws  of  the  United  States,  to 
which  their  jurisdiction  is  competent,  and  not  denied.  .  .  . 

We  hold  that  the  assignee  in  bankruptcy,  under  the  Bankrupt 
Act  of  1867,  as  it  stood  before  the  revision,  had  authority  to  bring 
a  suit  in  the  State  courts,  wherever  those  courts  were  invested  with 
appropriate  jurisdiction,  suited  to  the  nature  of  the  case. 

Judgment  affirmed. 


158  FEDERAL   GOVERNMENT. 

In  re  NEAGLE,  Petitioner. 

Supreme  Court  of  the  United  States.     1890. 

[135  United  States,  l.]i 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  California,  which  court,  on  habeas  corpus,  had 
discharged  Neagle  from  the  custody  of  the  sheriff  of  San  Joaquin 
County,  California. 

Neagle  was  an  acting  deputy  United  States  Marshal  and,  by 
reason  of  instructions  received  from  the  Attorney  General  of  the 
United  States,  was  detailed  by  the  Marshal  to  protect  against  vio- 
lence Mr.  Justice  Field,  of  the  Supreme  Court  of  the  United 
States,  while  performing,  or  on  his  way  to  perform,  his  duties  as  a 
Circuit  Judge  within  California.  Mr.  Justice  Field,  while  travel- 
ing to  the  place  of  holding  court,  was  murderously  attacked,  be- 
cause of  discharge  of  his  judicial  duty  in  a  proceeding  to  which  the 
assailant  had  been  a  party.  Neagle  interposed,  and  shot  the 
assailant. 

Under  a  warrent  issued  by  a  justice  of  the  peace,  Neagle  was 
arrested  for  murder.  He  was  committed  to  the  custody  of  the 
sheriff.  On  habeas  corpus  he  was  discharged  by  the  Circuit  Court 
of  the  United  States,  proceeding  under  a  statute  (U.  S.  R.  S.  sec. 
753)  which  provided  that  "  The  writ  of  habeas  corpus  shall  in  no 
case  extend  to  a  prisoner  in  jail,  unless  where  he  ...  is  in  custody 
for  an  act  done  or  omitted  in  pursuance  of  a  law  of  the  United 
States,  or  of  an  order,  process,  or  decree  of  a  court  or  judge  thereof; 
or  is  in  custody  in  violation  of  the  Constitution,  or  of  a  law  or 
treaty  of  the  United  States."  Thereupon,  in  accordance  with  the 
statute  (U.  S.  R.  S.  sec.  764,  as  amended  by  the  act  of  Mar.  3,  1885), 
an  appeal  was  taken  by  the  sheriff. 

Z.  Montgomery  and  others,  for  the  appellant;  and  W.  H.  H. 
Miller,  Attorney  General,  and  others,  contra. 

Miller,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

Without  a  more  minute  discussion  of  this  testimony,  it  produces 
upon  us  the  conviction  of  a  settled  purpose  on  the  part  of  Terry  and 
his  wife,  amounting  to  a  conspiracy,  to  murder  Justice  Field.  And 
we  are  quite  sure  that  if  Neagle  had  been  merely  a  brother  or  a 
friend  of  Judge  Field,  traveling  with  him,  and  aware  of  all  the 
previous  relations  of  Terry  to  the  Judge,  —  as  he  was,  —  of  his 

*  The  statement  has  not  been  reprinted.  —  Ed. 


In  re  neagle,  petitioner.  159 

bitter  animosity,  his  declared  purpose  to  have  revenge  even  to  the 
point  of  kiUing  him,  he  would  have  been  justified  in  what  he  did  in 
defence  of  Mr.  Justice  Field's  life,  and  possibly  of  his  own. 

But  such  a  justification  would  be  a  proper  subject  for  considera- 
tion on  a  trial  of  the  case  for  murder  in  the  courts  of  the  State  of 
California,  and  there  exists  no  authority  in  the  courts  of  the  United 
States  to  discharge  the  prisoner  while  held  in  custody  by  the  State 
authorities  for  this  offence,  unless  there  be  found  in  aid  of  the  de- 
fence of  the  prisoner  some  element  of  power  and  authority  asserted 
under  the  government  of  the  United  States. 

This  element  is  said  to  be  found  in  the  facts  that  Mr.  Justice 
Field,  when  attacked,  was  in  the  immediate  discharge  of  his  duty 
as  judge  of  the  Circuit  Courts  of  the  United  States  within  Cali- 
fornia; that  the  assault  upon  him  grew  out  of  the  animosity  of 
Terry  and  wife,  arising  out  of  the  previous  discharge  of  his  duty  as 
circuit  justice  in  the  case  for  which  they  were  committed  for  con- 
tempt of  court;  and  that  the  deputy  marshal  of  the  United  States, 
who  killed  Terry  in  defence  of  Field's  life,  was  charged  with  a  duty 
under  the  law  of  the  United  States  to  protect  Field  from  the  vio- 
lence which  Terry  was  inflicting,  and  which  was  intended  to  lead 
to  Field's  death.  .  .  . 

It  is  urged,  however,  that  there  exists  no  statute  authorizing  any 
such  protection  as  that  which  Neagle  was  instructed  to  give  Judge 
Field  in  the  present  case,  and  indeed  no  protection  whatever  against 
a  vindictive  or  malicious  assault  growing  out  of  the  faithful  dis- 
charge of  his  official  duties;  and  that  the  language  of  section  753 
of  the  Revised  Statutes,  that  the  party  seeking  the  benefit  of  the 
writ  of  habeas  corpus  must  in  this  connection  show  that  he  is  "  in 
custody  for  an  act  done  or  omitted  in  pursuance  of  a  law  of  the 
United  States,"  makes  it  necessary  that  upon  this  occasion  it  should 
be  shown  that  the  act  for  which  Neagle  is  imprisoned  was  done  by 
virtue  of  an  act  of  Congress.  It  is  not  supposed  that  any  special 
act  of  Congress  exists  which  authorizes  the  marshals  or  deputy 
marshals  of  the  United  States  in  express  terms  to  accompany  the 
judges  of  the  Supreme  Court  through  their  circuits,  and  act  as  a 
body-guard  to  them,  to  defend  them  against  malicious  assaults 
against  their  persons.  But  we  are  of  opinion  that  this  view  of  the 
statute  is  an  unwarranted  restriction  of  the  meaning  of  a  law  de- 
signed to  extend  in  a  liberal  manner  the  benefit  of  the  writ  of  habeas 
corpus  to  persons  imprisoned  for  the  performance  of  their  duty. 
And  we  are  satisfied  that  if  it  was  the  duty  of  Neagle,  under  the 
circumstances,  a  duty  which  could  only  arise  under  the  laws  of  the 


160  FEDERAL  GOVERNMENT. 

United  States,  to  defend  Mr.  Justice  Field  from  a  murderous  attack 
upon  him,  he  brings  himself  within  the  meaning  of  the  section  we 
have  recited.  This  view  of  the  subject  is  confirmed  by  the  alter- 
native provision,  that  he  must  be  in  custody  "  for  an  act  done  or 
omitted  in  pursuance  of  a  law  of  the  United  States  or  of  an  order, 
process,  or  decree  of  a  court  or  judge  thereof,  or  is  in  custody  in 
violation  of  the  Constitution  or  of  a  law  or  treaty  of  the  United 
States." 

In  the  view  we  take  of  the  Constitution  of  the  United  States, 
any  obligation  fairly  and  properly  inferrible  from  that  instrument, 
or  any  duty  of  the  marshal  to  be  derived  from  the  general  scope  of 
his  duties  under  the  laws  of  the  United  States,  is  "  a  law  "  within 
the  meaning  of  this  phrase.  It  would  be  a  great  reproach  to  the 
system  of  government  of  the  United  States,  declared  to  be  within 
its  sphere  sovereign  and  supreme,  if  there  is  to  be  found  within  the 
domain  of  its  powers  no  means  of  protecting  the  judges,  in  the  con- 
scientious and  faithful  discharge  of  their  duties,  from  the  malice 
and  hatred  of  those  upon  whom  their  judgments  may  operate 
unfavorably.  .  .  . 

Where,  then,  are  we  to  look  for  the  protection  which  we  have 
shown  Judge  Field  was  entitled  to  when  engaged  in  the  discharge 
of  his  official  duties  ?  Not  to  the  courts  of  the  United  States; 
because,  as  has  been  more  than  once  said  in  this  court,  in  the  divi- 
sion of  the  powers  of  government  between  the  three  great  depart- 
ments, executive,  legislative  and  judicial,  the  judicial  is  the  weakest 
for  the  purposes  of  self-protection  and  for  the  enforcement  of  the 
powers  which  it  exercises.  The  ministerial  officers  through  whom 
its  commands  must  be  executed  are  marshals  of  the  United  States, 
and  belong  emphatically  to  the  executive  department  of  the  gov- 
ernment. They  are  appointed  by  the  President,  with  the  advice 
and  consent  of  the  Senate.  They  are  removable  from  office  at  his 
pleasure.  They  are  subjected  by  act  of  Congress  to  the  super- 
vision and  control  of  the  Department  of  Justice,  in  the  hands  of 
one  of  the  cabinet  officers  of  the  President,  and  their  compensation 
is  provided  by  acts  of  Congress.  The  same  may  be  said  of  the 
district  attorneys  of  the  United  States,  who  prosecute  and  defend 
the  claims  of  the  government  in  the  courts. 

The  legislative  branch  of  the  government  can  only  protect  the 
judicial  officers  by  the  enactment  of  laws  for  that  purpose,  and  the 
argument  we  are  now  combating  assumes  that  no  such  law  has 
been  passed  by  Congress. 


In  re  neagle,  petitioner.  161 

If  we  turn  to  the  executive  department  of  the  government,  we 
find  a  very  different  condition  of  affairs.  The  Constitution,  section 
3,  Article  2,  declares  that  the  President,  "  shall  take  care  that  the 
laws  be  faithfully  executed,"  and  he  is  provided  with  the  means  of 
fulfilling  this  obligation  by  his  authority  to  commission  all  the 
officers  of  the  United  States,  and,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  appoint  the  most  important  of  them  and  to 
fill  vacancies.  He  is  declared  to  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States.  The  duties  which  are  thus 
imposed  upon  him  he  is  further  enabled  to  perform  by  the  recogni- 
tion in  the  Constitution,  and  the  creation  by  acts  of  Congress,  of 
executive  departments,  which  have  varied  in  number  from  four  or 
five  to  seven  or  eight,  the  heads  of  which  are  familiarly  called  cabi- 
net ministers.  These  aid  him  in  the  performance  of  the  great 
duties  of  his  office,  and  represent  him  in  a  thousand  acts  to  which 
it  can  hardly  be  supposed  his  personal  attention  is  called,  and  thus 
he  is  enabled  to  fulfil  the  duty  of  his  great  department,  expressed 
in  the  phrase  that  "  he  shall  take  care  that  the  laws  be  faithfully 
executed." 

Is  this  duty  limited  to  the  enforcement  of  acts  of  Congress  or  of 
treaties  of  the  United  States  according  to  their  express  terms,  or 
does  it  include  the  rights,  duties  and  obligations  growing  out  of  the 
Constitution  itself,  our  international  relations,  and  all  the  protec- 
tion implied  by  the  nature  of  the  government  under  the  Constitu- 
tion ?  .  .  . 

We  cannot  doubt  the  power  of  the  President  to  take  measures 
for  the  protection  of  a  judge  of  one  of  the  courts  of  the  United 
States,  who,  while  in  the  discharge  of  the  duties  of  his  office,  is 
threatened  with  a  personal  attack  which  may  probably  result  in  his 
death,  and  we  think  it  clear  that  where  this  protection  is  to  be 
afforded  through  the  civil  power,  the  Department  of  Justice  is  the 
proper  one  to  set  in  motion  the  necessary  means  of  protection.  .  .  . 

But  there  is  positive  law  investing  the  marshals  and  their  depu- 
ties with  powers  which  not  only  justify  what  Marshal  Neagle  did 
in  this  matter,  but  which  imposed  it  upon  him  as  a  duty.  In  chap- 
ter fourteen  of  the  Revised  Statutes  of  the  United  States,  which  is 
devoted  to  the  appointment  and  duties  of  the  district  attorneys, 
marshals,  and  clerks  of  the  courts  of  the  United  States,  section  788 
declares: 

"  The  marshals  and  their  deputies  shall  have,  in  each  State,  the 
same  powers,  in  executing  the  laws  of  the  United  States,  as  the 


162  FEDERAL   GOVERNMENT. 

sheriffs  and  their  deputies  in  such  State  may  have,  by  law,  in  exe- 
cuting the  laws  thereof." 

If,  therefore,  a  sheriff  of  the  State  of  California  was  authorized 
to  do  in  regard  to  the  laws  of  Cahfornia  what  Neagle  did,  that  is, 
if  he  was  authorized  to  keep  the  peace,  to  protect  a  judge  from 
assault  and  murder,  then  Neagle  was  authorized  to  do  the  same 
thing  in  reference  to  the  laws  of  the  United  States. 

Section  4176  of  the  Political  Code  of  California  reads  as  follows: 

"  The  sheriff  must: 

"  First.     Preserve  the  peace. 

"  Second.  Arrest  and  take  before  the  nearest  magistrate  for 
examination  all  persons  who  attempt  to  commit  or  have  committed 
a  public  offence. 

"  Third.  Prevent  and  suppress  all  affrays,  breaches  of  the 
peace,  riots  and  insurrections,  which  may  come  to  his  knowl- 
edge. .  .  ." 

And  the  Penal  Code  of  California  declares  (section  197)  that 
homicide  is  justifiable  when  committed  by  any  person  "  when  re- 
sisting any  attempt  to  murder  any  person  or  to  commit  a  felony  or 
to  do  some  great  bodily  injury  upon  any  person;  "  or  "  when  com- 
mitted in  defence  of  habitation,  property  or  person  against  one 
who  manifestly  intends  or  endeavors  by  violence  or  surprise  to 
commit  a  felony." 

That  there  is  a  peace  of  the  United  States;  that  a  man  assaulting 
a  judge  of  the  United  States  while  in  the  discharge  of  his  duties 
violates  that  peace;  that  in  such  case  the  marshal  of  the  United 
States  stands  in  the  same  relation  to  the  peace  of  the  United  States 
which  the  sheriff  of  the  county  does  to  the  peace  of  the  State  of 
California;  are  questions  too  clear  to  need  argument  to  prove 
them.  That  it  would  be  the  duty  of  a  sheriff,  if  one  had  been  pres- 
ent at  this  assault  by  Terry  upon  Judge  Field,  to  prevent  this 
breach  of  the  peace,  to  prevent  this  assault,  to  prevent  the  murder 
which  was  contemplated  by  it,  cannot  be  doubted.  .  .  . 

But  all  these  questions  being  conceded,  it  is  urged  against  the 
relief  sought  by  this  writ  of  habeas  corpus,  that  the  question  of  the 
guilt  of  the  prisoner  of  the  crime  of  murder  is  a  question  to  be  de- 
termined by  the  laws  of  California,  and  to  be  decided  by  its  courts, 
and  that  there  exists  no  power  in  the  government  of  the  United 
States  to  take  away  the  prisoner  from  the  custody  of  the  proper 
authorities  of  the  State  of  California  and  carry  him  before  a  judge 
of  the  court  of  the  United  States,  and  release  him  without  a  trial 
by  jury  according  to  the  laws  of  the  State  of  California.     That  the 


In  re  neagle,  petitioner.  163 

statute  of  the  United  States  authorizes  and  directs  such  a  proceed- 
ing and  such  a  judgment  in  a  case  where  the  offence  charged  against 
the  prisoner  consists  in  an  act  done  in  pursuance  of  a  law  of  the 
United  States  and  by  virtue  of  its  authority,  and  where  the  im- 
prisonment of  the  party  is  in  violation  of  the  Constitution  and 
laws  of  the  United  States,  is  clear  by  its  express  language. 

The  enactments  now  found  in  the  Revised  Statutes  of  the  United 
States  on  the  subject  of  the  writ  of  habeas  corpus  are  the  result  of  a 
long  course  of  legislation  forced  upon  Congress  by  the  attempt  of 
the  States  of  the  Union  to  exercise  the  power  of  imprisonment  over 
officers  and  other  persons  asserting  rights  under  the  federal  govern- 
ment or  foreign  governments,  which  the  States  denied.  .  .  . 

It  would  seem  as  if  the  argument  might  close  here.  If  the  duty 
of  the  United  States  to  protect  its  officers  from  violence,  even  to 
death,  in  discharge  of  the  duties  which  its  laws  impose  upon  them, 
be  established,  and  Congress  has  made  the  writ  of  habeas  corpus 
one  of  the  means  by  which  this  protection  is  made  efficient,  and  if 
the  facts  of  this  case  show  that  the  prisoner  was  acting  both  under 
the  authority  of  law,  and  the  directions  of  his  superior  officers 
of  the  Department  of  Justice,  we  can  see  no  reason  why  this  writ 
should  not  be  made  to  serve  its  purpose  in  the  present  case.  .  .  . 

We  have  thus  given,  in  this  case,  a  most  attentive  consideration 
to  all  the  questions  of  law  and  fact  which  we  have  thought  to  be 
properly  involved  in  it.  We  have  felt  it  to  be  our  duty  to  examine 
into  the  facts  with  a  completeness  justified  by  the  importance  of 
the  case,  as  well  as  from  the  duty  imposed  upon  us  by  the  statute, 
which  we  think  requires  of  us  to  place  ourselves,  as  far  as  possible, 
in  the  place  of  the  Circuit  Court  and  to  examine  the  testimony  and 
the  arguments  in  it,  and  to  dispose  of  the  party  as  law  and  justice 
require. 

The  result  at  which  we  have  arrived  upon  this  examination  is, 
that  in  the  protection  of  the  person  and  the  fife  of  Mr.  Justice  Field 
while  in  the  discharge  of  his  official  duties,  Neagle  was  authorized 
to  resist  the  attack  of  Terry  upon  him;  that  Neagle  was  correct  in 
the  belief  that  without  prompt  action  on  his  part  the  assault  of 
Terry  upon  the  judge  would  have  ended  in  the  death  of  the  latter; 
that  such  being  his  well-founded  belief,  he  was  justified  in  taking 
the  fife  of  Terry,  as  the  only  means  of  preventing  the  death  of  the 
man  who  was  intended  to  be  his  victim ;  that  in  taking  the  life  of 
Terry,  under  the  circumstances,  he  was  acting  under  the  authority 
of. the  law  of  the  United  States,  and  was  justified  in  so  doing;  and 


164  FEDERAL   GOVERNMENT. 

that  he  is  not  Hable  to  answer  in  the  courts  of  California  on  account 
of  his  part  in  that  transaction. 

We  therefore  affirm  the  judgment  of  the  Circuit  Court  authorizing 
his  discharge  from  the  custody  of  the  sheriff  of  San  Joaquin 
County. 
Lamar,  J.  (with  whom  concurred  Fuller,  C.  J.),  dissenting.  . . . 


SNYDER  V.  BETTMAN. 
Supreme  Court  of  the  United  States.     1903. 

[190  United  Slates,  249.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  Ohio. 

This  was  an  action  brought  by  the  executor  of  David  L.  Snyder 
against  the  collector  of  internal  revenue  to  recover  $22,000,  suc- 
cession tax  upon  a  legacy  of  $220,000,  bequeathed  to  the  city  of 
Springfield,  Ohio,  in  trust  to  expend  the  income  in  the  mainte- 
nance, improvement,  and  beautifying  of  a  public  park  of  the  city, 
known  as  Snyder  Park,  including  any  extension  thereof  which 
said  city  might  acquire.  Such  tax  having  been  paid  under  pro- 
test, this  action  was  brought  to  secure  a  refunding  of  the  same. 

A.  demurrer  to  the  petition  having  been  sustained  by  the  Cir- 
cuit Court,  and  final  judgment  entered,  the  case  was  brought  here 
by  writ  of  error. 

J.  E.  Bowman,  for  plaintiff  in  error;  and  Beck,  Assistant  Attor- 
ney General,  contra. 

Brown,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

This  case  involves  the  single  question  whether  it  is  within  the 
power  of  the  Federal  government,  and  within  the  spirit  of  the  act 
of  Congress  of  June  13,  1898,  30  Stat.  448,  as  amended  March  2, 
1901,  31  Stat.  946,  to  impose  a  succession  tax  upon  a  bequest  to  a 
municipal  corporation  of  a  State  for  a  corporate  and  public  purpose. 

The  case  is  to  a  certain  extent  the  converse  of  those  of  the  United 
States  V.  Perkins,  163  U.  S.  625,  and  Plummer  v.  Coler,  178  U.  S. 
115.     In  the  first  of  these  we  held  it  to  be  within  the  competency 


SNYDER   V.    BETTMAN.  165 

of  the  State  of  New  York  to  impose  a  similar  tax  upon  a  bequest 
to  the  Federal  government,  incidentally  deciding  (1)  that  the  in- 
heritance tax  of  the  State  was  "  in  reality  a  limitation  upon  the 
power  of  a  testator  to  bequeath  his  property  to  whom  he  pleases; 
a  declaration  that,  in  the  exercise  of  that  power,  he  shall  contribute 
a  certain  percentage  for  the  public  use;  "  and  (2)  that  the  tax  was 
not  a  tax  upon  the  property  itself,  but  upon  its  transmission  by 
will  or  descent.  In  Plummer  v.  Coler  we  held  the  incidental  fact 
that  the  property  bequeathed  is  composed  in  whole  or  in  part  of 
Federal  securities,  did  not  invalidate  the  state  tax  or  the  law  under 
which  it  was  imposed,  although  it  was  accepted  as  undeniable  that 
the  State  could  not,  in  the  exercise  of  the  power  of  taxation,  tax 
obligations  of  the  United  States,  and,  correlatively,  that  bonds 
issued  by  a  State,  or  under  its  authority  by  its  municipal  bodies, 
were  not  taxable  by  the  United  States. 

It  is  insisted,  however,  that  the  case  under  consideration  is  dis- 
tinguished from  those  above  cited,  in  the  fact  that  the  inheritance 
tax  of  New  York  was  but  a  condition  annexed  to  the  power  of  a 
testator  to  dispose  of  his  property  by  will,  and  that  such  power, 
being  purely  statutory,  the  State  has  the  right  to  annex  such 
conditions  to  it  as  it  pleases.  The  case,  then,  really  resolves  itself 
into  the  question  whether  the  authority  to  lay  a  succession  tax 
arises  solely  from  the  power  to  regulate  the  descent  of  property, 
or,  as  well  from  the  independent  general  power  to  tax,  or,  as  ex- 
pressed in  the  Constitution,  art  I,  sec.  8,  "  to  lay  and  collect  taxes, 
duties,  imposts  and  excises."  The  difficulty  with  this  proposition 
of  the  plaintiff  is  that  it  proves  too  much.  If  it  be  true  that  the 
right  to  impose  such  taxes  arises  solely  from  the  right  to  regulate 
successions,  then  a  denial  of  such  right  goes  to  the  whole  power  of 
the  goverrmient  to  impose  a  succession  tax,  irrespective  of  the 
question  whether  the  legacy  is  made  to  a  private  individual  or  to 
an  agent  of  the  State,  and  the  cases  in  this  court  upholding  the 
power  of  the  Federal  government  to  lay  such  tax  were  wrongly 
decided. 

That  question  was  exhaustively  considered  by  this  court  in 
Knowlton  v.  Moore,  178  U.  S.  41,  in  which  the  constitutionality 
of  this  law  was  attacked  upon  four  grounds:  (1)  That  the  taxes 
imposed  were  direct  taxes,  and  not  apportioned  according  to  the 
population;  (2)  if  not  direct,  they  were  levied  on  rights  created 
solely  by  a  state  law,  depending  for  their  continued  existence  on 
the  consent  of  the  several  States;  (3)  because  they  were  not  uni- 
form throughout  the  United  States;   (4)  that  ihe  rate  of  tax  was 


166  FEDERAL   GOVERNMENT. 

determined  by  the  aggregate  amount  of  the  personal  estate  of  the 
deceased,  and  not  by  the  sum  of  the  legacies  or  distributive  shares. 
It  was  held,  following  the  cases  of  United  States  v.  Perkins,  163 
U.  S.  625,  and  Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S. 
283,  that  an  inheritance  tax  was  not  one  upon  property  but  upon 
the  succession.  The  question  involved  here,  as  to  the  power  of 
Congress  to  levy  a  succession  tax,  was  considered,  and  it  was  said 
by  Mr.  Justice  White  (p.  56):  "The  proposition  that  it  cannot 
rests  upon  the  assumption  that,  since  the  transmission  of  property 
by  death  is  exclusively  subject  to  the  regulating  authority  of  the 
several  States,  therefore  the  levy  by  Congress  of  a  tax  on  inheri- 
tances or  legacies,  in  any  form,  is  beyond  the  power  of  Congress, 
and  is  an  interference  by  the  national  government  with  a  matter 
which  falls  alone  within  the  reach  of  state  legislation."  This 
proposition  was  pronounced  a  fallacy:  "  In  legal  effect,  then,  the 
proposition  upon  which  the  argument  rests  is  that  wherever  a  right 
is  subject  to  exclusive  regulation,  by  either  the  government  of  the 
United  States  on  the  one  hand  or  the  several  States  on  the  other, 
the  exercise  of  such  rights  as  regulated  can  alone  be  taxed  by  the 
government  having  the  mission  to  regulate."  In  this  connection 
was  cited  the  power  of  the  States  to  tax  imported  goods  after  they 
had  been  commingled  with  the  general  property  of  the  State,  as 
well  as  vehicles  engaged  in  interstate  commerce. 

Continuing,  it  was  further  said  (p.  60) :  "  It  cannot  be  doubted 
that  the  argument  when  reduced  to  its  essence  demonstrates  its 
own  unsoundness,  since  it  leads  to  the  necessary  conclusion  that 
both  the  national  and  state  governments  are  divested  of  those 
powers  of  taxation  which  from  the  foundation  of  the  government 
admittedly  have  belonged  to  them.  .  .  .  Under  our  constitu- 
tional system  both  the  national  and  the  state  governments, 
moving  in  their  respective  orbits,  have  a  common  authority  to 
tax  many  and  diverse  objects,  but  this  does  not  cause  the  exercise 
of  its  lawful  attributes  by  one  to  be  a  curtailment  of  the  powers 
of  government  of  the  other,  for  if  it  did  there  would  practically 
be  an  end  of  the  dual  system  of  government  which  the  Constitu- 
tion established." 

This  case  must  be  regarded  as  definitely  establishing  the  doc- 
trine that  the  power  to  tax  inheritances  does  not  arise  solely  from 
the  power  to  regulate  the  descent  of  property,  but  from  the  general 
authority  to  impose  taxes  upon  all  property  within  the  jurisdic- 
tion of  the  taxing  power.  It  has  usually  happened  that  the  power 
has  been  exercised  by  the  same  government  which  regulates  the 


SNYDER   V.    BETTMAN.  167 

succession  to  the  property  taxed;  but  this  power  is  not  destroyed 
by  the  dual  character  of  our  government,  or  by  the  fact  that  under 
our  Constitution  the  devolution  of  property  is  determined  by  the 
laws  of  the  several  States. 

The  principles  laid  down  in  Knowlton  v.  Moore  were  reiterated 
in  Murdock  v.  Ward,  178  U.  S.  139,  although  the  case  was  decided 
upon  the  authority  of  Plummer  v.  Coler. 

If  it  be  true  that  it  is  beyond  the  power  of  Congress  to  impose 
an  inheritance  tax  because  the  descent  of  property  is  regulated  by 
state  statutes,  it  would  be  difficult  to  support  its  power  to  impose 
stamp  taxes  upon  commercial  and  legal  instruments,  since  the  con- 
veyance, regulation  and  transmission  of  all  property  is  governed  by 
the  laws  of  the  several  States.  Particularly  would  this  be  so  with 
reference  to  stamp  duties  imposed  upon  documents  connected  with 
the  devolution  of  the  property  of  a  deceased  person.  And,  yet, 
as  stated  in  Knowlton  v.  Moore,  Congress,  as  early  as  1797,  im- 
posed a  stamp  duty,  not  only  upon  receipts  or  other  discharges  for 
or  on  account  of  any  legacy,  or  for  a  share  of  personal  estate  divided 
under  the  statute  of  distributions,  proportioned  to  the  amount  of 
the  legacy  or  such  distributive  share,  but  in  the  internal  revenue 
act  of  1862,  12  Stat.  432,  483,  a  tax  was  imposed  upon  the  probate 
of  wills  and  letters  of  administration,  proportioned  to  the  value 
of  the  estate.  Not  only  this,  but  the  same  statute  imposed  a  tax 
upon  writs,  or  other  original  process,  by  which  suits  are  commenced 
in  any  court  of  record,  exempting  only  processes  issued  by  justices 
of  the  peace,  or  in  suits  begun  by  the  United  States,  or  any  State. 
This  act  was  treated  as  applicable  to  the  state  courts,  although  its 
constitutionality  may  well  be  doubted. 

Referable  to  the  same  principle  is  the  power  of  Congress  to  tax 
occupations  which  can  only  be  carried  on  by  permission  of  the 
state  authorities  and  under  conditions  prescribed  by  its  laws  — ■ 
such,  for  instance,  as  the  profession  of  a  lawyer  or  physician  or 
the  business  of  dealing  in  spirituous  liquors,  for  which  licenses  are 
required  under  the  laws  of  nearly  all  the  States.  While  the  power 
of  Congress  to  impose  such  taxes  may  never  have  been  expressly 
afSrmed  by  this  court,  it  does  not  seem  to  have  been  seriously 
questioned,  and  is  a  legitimate  inference  from  McGuire  v.  The 
Commonwealth,  3  Wall.  387;  The  License  Tax  Cases,  5  Wall.  462; 
Pervear  v.  The  Commonwealth,  5  Wall.  475;  and  Royall  v.  Virginia, 
116  U.  S.  572,  580.  See  also  Ould  v.  City  of  Richmond,  23  Gratt. 
464;  Humphreys  v.  City  of  Norfolk,  25  Gratt.  97. 


168  FEDERAL   GOVERNMENT. 

Conceding  fully  that  Congress  has  no  power  to  impose  a  burden 
upon  a  State  or  its  municipal  corporations,  the  question  in  each 
case  is  whether  the  tax  is  direct  or  incidental;  since  we  have  had 
frequent  occasion  to  hold  that  the  imposition  of  a  tax  may  indi- 
rectly affect  the  value  of  property  to  the  amount  of  the  tax  without 
being  legally  objectionable  as  a  direct  burden  upon  such  property. 
Thus  in  Van  Allen  v.  The  Assessors,  3  Wall.  573,  we  held  it  to  be 
within  the  power  of  the  States  to  tax  the  shares  of  national  banks, 
though  a  part  or  the  whole  of  the  capital  of  such  bank  were  in- 
vested in  national  securities  exempt  from  taxation,  upon  the  ground 
that  the  taxation  of  the  shares  was  not  a  taxation  of  the  capital. 
So  a  tax  upon  deposits  was  upheld,  though  such  deposits  were  in- 
vested in  United  States  securities.  Society  for  Savings  v.  Coite, 
6  Wall.  594;  Provident  Institution  v.  Massachusetts,  6  Wall.  611; 
Hamilton  Co.  v.  Massachusetts,  6  Wall.  632.  The  same  principle 
was  extended  to  a  statute  of  New  York,  imposing  a  tax  upon  cor- 
porations measured  by  its  dividends,  though  such  dividends  were 
derived  from  interest  upon  government  bonds.  Home  Ins.  Co. 
V.  New  York,  134  U.  S.  594.  As  the  tax  in  the  case  under  con- 
sideration is  collected  from  the  property  while  in  the  hands  of  the 
executor  (sec.  30),  who  is  required  to  liquidate  it  "  before  payment 
and  distribution  to  the  legatees,"  we  do  not  regard  it  as  a  tax  upon 
the  municipality,  though  it  may  operate  incidentally  to  reduce  the 
bequest  by  the  amount  of  the  tax.  Such  incidental  effects  are 
common  to  many,  if  not  all,  forms  of  taxation  —  indeed  it  may  be 
said  generally  that  few  taxes  are  wholly  paid  by  the  person  upon 
whom  they  are  directly  and  primarily  imposed. 

Having  determined,  then,  that  Congress  has  the  power  to  tax 
successions;  that  the  States  have  the  same  power,  and  that  such 
power  extends  to  bequests  to  the  United  States,  it  would  seem  to 
follow  logically  that  Congress  has  the  same  power  to  tax  the  trans- 
mission of  property  by  legacy  to  States,  or  their  municipalities, 
and  that  the  exercise  of  that  power  in  neither  case  conflicts  with 
the  proposition  that  neither  the  Federal  nor  the  state  government 
can  tax  the  property  or  agencies  of  the  other,  since,  as  repeatedly 
held,  the  taxes  imposed  are  not  upon  property,  but  upon  the  right 
to  succeed  to  property. 

If  the  position  of  the  plaintiff  be  sound,  it  will  come  to  pass  that, 
with  the  same  power  to  tax  the  subject  matter,  i.e.,  the  transmission 
of  the  property,  the  States  are  competent  to  limit  the  amount  of 
bequests  to  the  Federal  government  by  requiring  the  prepayment 
of  a  succession  tax  as  a  condition  precedent  to  the  transmission 


SOUTH    CAROLINA   V.    UNITED    STATES.  169 

of  the  property,  while  Congress  is  impotent  to  accomplish  the  same 
result  with  respect  to  legacies  to  States  or  their  agents.  We  are 
reluctant  to  admit  the  inferiority  of  Congress  in  that  particular. 

The  judgment  of  the  Circuit  Court  is  therefore, 

Affirmed. 

White,  J.,  with  whom  concur  Fuller,  C.J.,  and  Peckham,  J., 
dissenting.  .  .  . 


SOUTH  CAROLINA  v.  UNITED   STATES. 

Supreme  Court  of  the  United  States.     1905. 

[199  United  States,  437.]  ^ 

Appeal  from  the  Court  of  Claims. 

South  Carolina  having  established  dispensaries  for  the  sale  of 
liquor  and  having  prohibited  sale  by  others  than  the  dispensers, 
the  United  States  demanded  and  collected  from  the  dispensers  the 
license  taxes  prescribed  by  the  internal  revenue  laws.  The  State, 
and  not  the  dispensers,  had  all  the  profit  of  the  business,  though 
the  State  divided  half  the  profit  of  each  dispensary  equally  be- 
tween the  municipality  and  the  county.  The  State  brought 
actions  in  the  Court  of  Claims  for  the  recovery  of  the  license 
taxes  paid;  and  upon  judgment  in  behalf  of  the  United  States, 
as  reported  in  39  Court  of  Claims,  257,  this  appeal  was  taken. 

J.  H.  Ralston  and  others,  for  appellant. 

Hoyt,  Sohcitor  General,  for  the  United  States. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  important  question  in  this  case  is,  whether  persons  who  are 
selling  liquor  are  relieved  from  liability  for  the  internal  revenue 
tax  by  the  fact  that  they  have  no  interest  in  the  profits  of  the 
business  and  are  simply  the  agents  of  a  State  which,  in  the  exercise 
of  its  sovereign  power,  has  taken  charge  of  the  business  of  selling 
intoxicating  liquors.  .  .  . 

We  have  in  this  Republic  a  dual  system  of  government,  National 
and  State,  each  operating  within  the  same  territory  and  upon  the 

^  The  original  statement  has  not  been  reprinted.  —  Ed. 


170  FEDERAL   GOVERNMENT. 

same  persons;  and  yet  working  without  collision,  because  their 
functions  are  different.  There  are  certain  matters  over  which  the 
National  Government  has  absolute  control  and  no  action  of 
the  State  can  interfere  therewith,  and  there  are  others  in  which  the 
State  is  supreme,  and  in  respect  to  them  the  National  Government 
is  powerless.  To  preserve  the  even  balance  between  these  two 
governments  and  hold  each  in  its  separate  sphere  is  the  peculiar 
duty  of  all  courts,  preeminently  of  this  —  a  duty  oftentimes  of 
great  delicacy  and  difficulty. 

Two  propositions  in  our  constitutional  jurisprudence  are  no 
longer  debatable.  One  is  that  the  National  Government  is  one  of 
enumerated  powers,  and  the  other  that  a  power  enumerated  and 
delegated  by  the  Constitution  to  Congress  is  comprehensive  and 
complete,  without  other  limitations  than  those  found  in  the  Con- 
stitution itself.  .  .  . 

But  it  is  undoubtedly  true  that  that  which  is  implied  is  as  much 
a  part  of  the  Constitution  as  that  which  is  expressed.  .  .  . 

Among  those  matters  which  are  implied,  though  not  expressed, 
is  that  the  Nation  may  not,  in  the  exercise  of  its  powers,  prevent  a 
State  from  discharging  the  ordinary  functions  of  government,  just 
as  it  follows  from  the  second  clause  of  Article  VI  of  the  Constitu- 
tion, that  no  State  can  interfere  with  the  free  and  unembarrassed 
exercise  by  the  National  Government  of  all  the  powers  conferred 
upon -it.  .  .  . 

In  other  words,  the  two  governments.  National  and  state,  are 
each  to  exercise  their  power  so  as  not  to  interfere  with  the  free  and 
full  exercise  by  the  other  of  its  powers.  .  .  . 

Upon  this  proposition  counsel  for  plaintiff  in  error  rely.  There 
beingno  constitutional  limit  as  to  the  amount  of  a  license  tax,  and 
the  power  to  tax  being  the  power  to  destroy,  if  Congress  can  en- 
force such  a  tax  against  a  State  it  may  destroy  this  effort  of  the 
State  in  the  exercise  of  its  police  power  to  control  the  sale  of  liquor. 
It  cannot  be  doubted  that  the  regulation  of  the  sale  of  liquor  comes 
within  the  scope  of  the  police  power,  and  equally  true  that  the 
police  power  is  in  its  fullest  and  broadest  sense  reserved  to  the 
States;  that  the  mode  of  exercising  that  power  is  left  to  their  dis- 
cretion, and  is  not  subject  to  National  supervision.  But  if  Con- 
gress may  tax  the  agents  of  the  State  charged  with  the  duty  of 
selling  intoxicating  liquors,  it  in  effect  assumes  a  certain  control 
over  this  police  power,  and  thus  may  embarrass  and  even  thwart 
the  attempt  of  the  State  to  carry  on  this  mode  of  regulation. 


SOUTH    CAROLINA    V.    UNITED    STATES.  171 

We  are  not  insensible  to  the  force  of  this  argument,  and  appre- 
ciate the  difficulties  which  it  presents,  but  let  us  see  to  what  it 
leads.  Each  State  is  subject  only  to  the  limitations  prescribed 
by  the  Constitution  and  within  its  own  territory  is  otherwise  su- 
preme. Its  internal  affairs  are  matters  of  its  own  discretion.  The 
Constitution  provides  that  "  the  United  States  shall  guarantee  to 
every  State  in  this  Union  a  republican  form  of  government." 
Art  IV,  sec.  4.  That  expresses  the  full  limit  of  National  control 
over  the  internal  affairs  of  a  State. 

The  right  of  South  Carolina  to  control  the  sale  of  liquor  by  the 
dispensary  system  has  been  sustained.  Vance  v.  W.  A.  Vander- 
cook  Co.,  No.  1,  170  U.  S.  438.  The  profits  from  the  business  in 
the  year  1901,  as  appears  from  the  findings  of  fact,  were  over  half 
a  miUion  of  dollars.  Mingling  the  thought  of  profit  with  the  neces- 
sity of  regulation  may  induce  the  State  to  take  possession,  in  like 
manner,  of  tobacco,  oleomargarine,  and  all  other  objects  of  internal 
revenue  tax.  If  one  State  finds  it  thus  profitable  other  States  may 
follow,  and  the  whole  body  of  internal  revenue  tax  be  thus  stricken 
down. 

More  than  this.  There  is  a  large  and  growing  movement  in 
the  country  in  favor  of  the  acquisition  and  management  by  the 
public  of  what  are  termed  public  utilities,  including  not  merely 
therein  the  supply  of  gas  and  water,  but  also  the  entire  railroad 
system.  Would  the  State  by  taking  into  possession  these  public 
utilities  lose  its  republican  form  of  government  ? 

We  may  even  go  a  step  further.  There  are  some  insisting  that 
the  State  shall  become  the  owner  of  all  property  and  the  manager 
of  all  business.  Of  course,  this  is  an  extreme  view,  but  its  advo- 
cates are  earnestly  contending  that  thereby  the  best  interests  of 
all  citizens  will  be  subserved.  If  this  change  should  be  made  in 
any  State,  how  much  would  that  State  contribute  to  the  revenue 
of  the  Nation  ?  If  this  extreme  action  is  not  to  be  counted  among 
the  probabilities,  consider  the  result  of  one  much  less  so.  Suppose 
a  State  assumes  under  its  police  power  the  control  of  all  those  mat- 
ters subject  to  the  internal  revenue  tax  and  also  engages  in  the 
business  of  importing  all  foreign  goods.  The  same  argument 
which  would  exempt  the  sale  by  a  State  of  liquor,  tobacco,  etc., 
from  a  license  tax  would  exempt  the  importation  of  merchandise 
by  a  State  from  import  duty.  While  the  State  might  not  prohibit 
importation,  as  it  can  the  sale  of  liquor,  by  private  individuals, 
yet  paying  no  import  duty  it  could  undersell  all  individuals  and 
so  monopolize  the  importation  and  sale  of  foreign  goods. 


172  FEDERAL   GOVERNMENT. 

Obviously,  if  the  power  of  the  State  is  carried  to  the  extent 
suggested,  and  with  it  is  rehef  from  all  Federal  taxation,  the 
National  Government  would  be  largely  crippled  in  its  revenues. 
Indeed,  if  all  the  States  should  concur  in  exercising  their  powers 
to  the  full  extent,  it  would  be  almost  impossible  for  the  Nation  to 
collect  any  revenues.  In  other  words,  in  this  indirect  way  it 
would  be  within  the  competency  of  the  States  to  practically  destroy 
the  efficiency  of  the  National  Government.  If  it  be  said  that  the 
States  can  be  trusted  not  to  resort  to  any  such  extreme  measures, 
because  of  the  resulting  interference  with  the  efficiency  of  the 
National  Government,  we  may  turn  to  the  opinion  of  Mr.  Chief 
Justice  Marshall  in  M'Culloch  v.  Maryland.  .  .  . 

In  other  words,  we  are  to  find  in  the  Constitution  itself  the  full 
protection  to  the  Nation,  and  not  to  rest  its  sufficiency  on  either 
the  generosity  or  the  neglect  of  any  State. 

There  is  something  of  a  conflict  between  the  full  power  of  the 
Nation  in  respect  to  taxation  and  the  exemption  of  the  State  from 
Federal  taxation  in  respect  to  its  property  and  a  discharge  of  all 
its  functions.  Where  and  how  shall  the  line  between  them  be 
drawn  ?  We  have  seen  that  the  full  power  of  collecting  license 
taxes  is  in  terms  granted  to  the  National  Government  with  only 
the  limitations  of  uniformity  and  the  public  benefit.  The  exemp- 
tion of  the  State's  property  and  its  functions  from  Federal  taxation 
is  implied  from  the  dual  character  of  our  Federal  system  and  the 
necessity  of  preserving  the  State  in  all  its  efficiency.  In  order  to 
determine  to  what  extent  that  impHcation  will  go  we  must  turn 
to  the  condition  of  things  at  the  time  the  Constitution  was  framed. 
What,  in  the  light  of  that  condition,  did  the  framers  of  the  conven- 
tion intend  should  be  exempt  ?  Certain  is  it  that  modern  notions 
as  to  the  extent  to  which  the  functions  of  a  State  may  be  carried 
had  then  no  hold.  Whatever  Utopian  theories  may  have  been 
presented  by  any  writers  were  regarded  as  mere  creations  of  fancy, 
and  had  no  practical  recognition.  It  is  true  that  monopohes  in 
respect  to  certain  commodities  were  known  to  have  been  granted 
by  absolute  monarchs,  but  they  were  not  regarded  as  consistent 
with  Anglo-Saxon  ideas  of  government.  The  opposition  to  the 
Constitution  came  not  from  any  apprehension  of  danger  from  the 
extent  of  power  reserved  to  the  States,  but,  on  the  other  hand, 
entirely  through  fear  of  what  might  result  from  the  exercise  of  the 
powers  granted  to  the  central  government.  While  many  believed 
that  the  liberty  of  the  people  depended  on  the  preservation  of  the 
rights  of  the  States,  they  had  no  thought  that  those  States  would 


SOUTH    CAROLINA   V.    UNITED    STATES.  173 

extend  their  functions  beyond  their  then  recognized  scope,  or  so 
as  to  imperil  the  life  of  the  Nation.  .  .  . 

Looking,  therefore,  at  the  Constitution  in  the  light  of  the  condi- 
tions surrounding  at  the  time  of  its  adoption,  it  is  obvious  that  the 
framers  in  granting  full  power  over  license  taxes  to  the  National 
Government  meant  that  that  power  should  be  complete,  and  never 
thought  that  the  States  by  extending  their  functions  could  practi- 
cally destroy  it. 

If  we  look  upon  the  Constitution  in  the  light  of  the  common  law 
we  are  led  to  the  same  conclusion.  All  the  avenues  of  trade  were 
open  to  the  individual.  The  Government  did  not  attempt  to 
exclude  him  from  any.  Whatever  restraints  were  put  upon  him 
were  mere  pohce  regulations  to  control  his  conduct  in  the  business 
and  not  to  exclude  him  therefrom.  The  Government  was  no 
competitor,  nor  did  it  assume  to  carry  on  any  business  which  ordi- 
narily is  carried  on  by  individuals.  Indeed,  every  attempt  at 
monopoly  was  odious  in  the  eyes  of  the  common  law,  and  it  mat- 
tered not  how  that  monopoly  arose,  whether  from  grant  of  the 
sovereign  or  otherwise.  The  framers  of  the  Constitution  were  not 
anticipating  that  a  State  would  attempt  to  monopolize  any  busi- 
ness heretofore  carried  on  by  individuals. 

Further,  it  may  be  noticed  that  the  tax  is  not  imposed  on  any 
property  belonging  to  the  State,  but  is  a  charge  on  a  business 
before  any  profits  are  realized  therefrom.  In  this  it  is  not  unlike 
the  taxes  sustained  in  United  States  v.  Perkins,  163  U.  S.  625,  and 
Snyder  v.  Bettman,  190  U.  S.  249.  In  the  former  case  a  succession 
tax  of  the  State  of  New  York  was  sustained,  although  the  property 
charged  therewith  was  bequeathed  by  will  to  the  United  States, 
the  court  holding  that  the  latter  acquired  no  property  until  after 
the  state  charges  for  transmission  had  been  paid,  saying : 

"  *  This,  therefore,  is  not  a  tax  upon  the  property  itself,  but  is 
merely  the  price  exacted  by  the  State  for  the  privilege  accorded 
in  permitting  property  so  situated  to  be  transferred  by  will  or  by 
descent  or  distribution.'  " 

In  Snyder  v.  Bettman,  the  succession  tax  required  by  the  laws 
of  Congress  was  sustained,  although  the  bequest  was  to  the  city 
of  Springfield,  Ohio.  This  is  almost  a  converse  to  the  Perkins 
case.  It  was  held  that  while  the  power  to  regulate  inheritances 
and  testamentary  dispositions  was  one  belonging  to  the  State, 
and  therefore  subject  to  such  conditions  as  the  State  might  see  fit 
to  impose  (as  held  in  the  Perkins  case),  yet  the  power  to  impose 
a  succession  tax  was  vested  in  Congress,  that  it  could  be  exercised 


174  FEDERAL   GOVERNMENT. 

upon  a  bequest  made  to  a  municipality  or  a  State,  and  was  not  to 
be  considered  as  a  tax  upon  the  property  bequeathed,  the  court 
saying: 

"  Having  determined,  then,  that  Congress  has  the  power  to  tax 
successions;  that  the  States  have  the  same  power,  and  that  such 
power  extends  to  bequests  to  the  United  States,  it  would  seem  to 
follow  logically  that  Congress  has  the  same  power  to  tax  the 
transmission  of  property  by  legacy  to  States,  or  their  municipali- 
ties, and  that  the  exercise  of  that  power  in  neither  case  conflicts 
with  the  proposition  that  neither  the  Federal  nor  the  state  govern- 
ment can  tax  the  property  or  agencies  of  the  other,  since,  as  re- 
peatedly held,  the  taxes  imposed  are  not  upon  property,  but  upon 
the  right  to  succeed  to  property." 

So  here  the  charge  is  not  upon  the  property  of  the  State,  but 
upon  the  means  by  which  that  property  is  acquired,  and  before  it 
is  acquired. 

It  is  also  worthy  of  remark  that  the  cases  in  which  the  invalidity 
of  a  Federal  tax  has  been  affirmed  were  those  in  which  the  tax  was 
attempted  to  be  levied  upon  property  belonging  to  the  State,  or 
one  of  its  municipalities,  or  was  a  charge  upon  the  means  and  in- 
strumentalities employed  by  the  State,  in  the  discharge  of  its 
ordinary  functions  as  a  government. 

In  Veazie  Bank  v.  Fenno,  8  Wall.  533,  in  which  a  National  tax 
of  ten  per  cent  on  the  amount  of  notes  of  any  person,  state  bank, 
or  banking  association,  used  for  circulation,  was  sustained,  the 
court  has  stated  the  limits  of  the  power  of  National  taxation  over 
state  agencies  (p.  547) : 

"  It  may  be  admitted  that  the  reserved  rights  of  the  States, 
such- as  the  right  to  pass  laws,  to  give  effect  to  laws  through  execu- 
tive action,  to  administer  justice  through  the  courts,  and  to  employ 
all  necessary  agencies  for  legitimate  purposes  of  state  government, 
are  not  proper  subjects  of  the  taxing  power  of  Congress."  .  .  . 

In  Ambrosini  v.  United  States,  187  U.  S.  1,  in  which  the  Federal 
war  revenue  tax  act,  providing  for  stamp  taxes  on  bonds,  was  held 
inapplicable  to  bonds  required  from  licensees  under  the  dram  shop 
act  of  Illinois,  the  court  declared  (p.  8) : 

"  The  question  is  whether  the  bonds  were  taken  in  the  exercise 
of  a  function  strictly  belonging  to  the  State  and  city  in  their  ordi- 
nary governmental  capacity,  and  we  are  of  the  opinion  that  they 
were,  and  that  they  were  exempted  as  no  more  taxable  than  the 
licenses." 


SOUTH    CAROLINA   V.    UNITED    STATES.  175 

These  decisions,  while  not  controlHng  the  question  before  us, 
indicate  that  the  thought  has  been  that  the  exemption  of  state 
agencies  and  instrumentahties  from  National  taxation  is  limited 
to  those  which  are  of  a  strictly  governmental  character,  and  does 
not  extend  to  those  which  are  used  by  the  State  in  the  carrying  on 
of  an  ordinary  private  business. 

In  this  connection  may  be  noticed  the  well-established  distinc- 
tion between  the  duties  of  a  public  character  cast  upon  municipal 
corporations  and  those  which  relate  to  what  may  be  considered 
their  private  business,  and  the  different  responsibility  resulting  in 
case  of  negligence  in  respect  to  the  discharge  of  those  duties.  .  .  . 

Now,  if  it  be  well  established,  as  these  authorities  say,  that 
there  is  a  clear  distinction  as  respects  responsibility  for  negligence 
between  the  powers  granted  to  a  corporation  for  governmental 
purposes  and  those  in  aid  of  private  business,  a  like  distinction 
may  be  recognized  when  we  are  asked  to  limit  the  full  power  of 
imposing  excises  granted  to  the  National  Goverrmient  by  an  implied 
inability  to  impede  or  embarrass  a  State  in  the  discharge  of  its 
functions.  It  is  reasonable  to  hold  that  while  the  former  may  do 
nothing  by  taxation  in  any  form  to  prevent  the  full  discharge  by 
the  latter  of  its  governmental  functions,  yet  whenever  a  State 
engages  in  a  business  which  is  of  a  private  nature  that  business  is 
not  withdrawn  from  the  taxing  power  of  the  Nation. 

For  these  reasons  we  think  that  the  license  taxes  charged  by 
the  Federal  Government  upon  persons  selling  liquor  are  not  invali- 
dated by  the  fact  that  they  are  the  agents  of  the  State  which  has 
itself  engaged  in  that  business. 

The  judgment  of  the  Court  of  Claims  is  Affirmed. 

White,  J.,  with  whom  concur  Peckham,  J.,  and  McKenna,  J., 
dissenting.  .  .  . 


176  FEDERAL   GOVERNMENT. 

KANSAS  V.  COLORADO  et  al,  Defendants,  and  THE  UNITED 
STATES,   Intervener. 

Supreme  Court  of  the  United  States.     1907. 

[206  United  States,  46.]  ^ 
Original 

Kansas  filed  a  bill  in  equity  against  Colorado,  praying  a  decree 
that  Colorado  be  enjoined  from  constructing  or  operating  any 
canal,  ditch,  or  reservoir  whereby  the  waters  of  the  Arkansas 
River  should  be  diverted  for  purposes  of  irrigation  and  also  from 
granting  hcenses  for  diverting  the  waters  of  that  river  except 
for  domestic  use. 

The  court  having  decided,  as  reported  in  185  U.  S.  125,  that, 
considering  the  nature  of  the  case,  it  would  be  improper  to  proceed 
on  mere  technical  admissions  made  by  demurrer,  Kansas  filed  an 
amended  bill  against  Colorado  and  various  corporations  charged 
to  be  depleting  the  flow  of  water  in  the  Arkansas  River.  Colo- 
'rado  and  some  of  the  corporations  answered.  The  United  States 
filed  a  petition  in  intervention. 

The  issues  having  been  perfected  by  replications,  evidence  was 
taken  by  a  commissioner.  The  essential  facts  are  found  in  such 
extracts  from  the  opinion  as  are  here  reprinted. 

C.  C.  Coleman,  Attorney  General  of  Kansas,  and  others,  for 
complainant. 

A''.  C.  Miller,  Attorney  General  of  Colorado,  and  others,  for 
Colorado. 

H.  M.  Hoyt,  Solicitor  General  of  the  United  States,  and  others, 
for  the  United  States. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

In  the  Constitution  are  provisions  in  separate  articles  for  the 
three  great  departments  of  government  —  legislative,  executive 
and  judicial.  But  there  is  this  significant  difference  in  the  grants 
of  powers  to  these  departments:  The  first  article,  treating  of 
legislative  powers,  does  not  make  a  general  grant  of  legislative 
power.  It  reads:  "Article  I,  Section  1.  All  legislative  powers 
herein  granted  shall  be  vested  in  a  Congress,"  etc.;  and  then  in 
Article  VIII  mentions  and  defines  the  legislative  powers  that  are 
granted.     By  reason  of  the  fact  that  there  is  no  general  grant  of 

^  An  abbreviated  Btatement  has  been  presented.  —  Ed. 


KANSAS   V.    COLORADO.  177 

legislative  power  it  has  become  an  accepted  constitutional  rule 
that  this  is  a  government  of  enumerated  powers.   .   .   . 

Speaking  generally,  it  may  be  observed  that  the  judicial  power 
of  a  nation  extends  to  all  controversies  justiciable  in  their  nature, 
the  parties  to  which  or  the  property  involved  in  which  may  be 
reached  by  judicial  process,  and  when  the  judicial  power  of  the 
United  States  was  vested  in  the  Supreme  and  other  courts  all  the 
judicial  power  which  the  Nation  was  capable  of  exercising  was 
vested  in  those  tribunals,  and  unless  there  be  some  limitations 
expressed  in  the  Constitution  it  must  be  held  to  embrace  all  con- 
troversies of  a  justiciable  nature  arising  within  the  territorial 
limits  of  the  Nation,  no  matter  who  may  be  the  parties  thereto.  .  .  . 

These  considerations  lead  to  the  propositions  that  when  a 
legislative  power  is  claimed  for  the  National  Government  the 
question  is  whether  that  power  is  one  of  those  granted  by  the 
Constitution,  either  in  terms  or  by  necessary  implication,  whereas 
in  respect  to  judicial  functions  the  question  is  whether  there  be 
any  limitations  expressed  in  the  Constitution  on  the  general  grant 
of  national  power. 

We  may  also  notice  a  matter  in  respect  thereto  referred  to  at 
length  in  Missouri  v.  Illinois  &  Chicago  District,  180  U.  S.  208, 
220.  The  ninth  article  of  the  Articles  of  Confederation  provided 
that  "  the  United  States  in  Congress  assembled  shall  also  be  the 
last  resort  on  appeal  in  all  disputes  and  differences  now  subsisting 
or  that  hereafter  may  arise  between  two  or  more  States,  concerning 
boundary,  jurisdiction  or  any  other  cause  whatever."  In  the 
early  drafts  of  the  Constitution  provision  was  made  giving  to  the 
Supreme  Court  "  jurisdiction  of  controversies  between  two  or 
more  States,  except  such  as  shall  regard  territory  or  jurisdiction," 
and  also  that  the  Senate  should  have  exclusive  power  to  regulate 
the  manner  of  deciding  the  disputes  and  controversies  between  the 
States  respecting  jurisdiction  or  territory.  As  finally  adopted, 
the  Constitution  omits  all  provisions  for  the  Senate  taking  cogniz- 
ance of  disputes  between  the  States  and  leaves  out  the  exception 
referred  to  in  the  jurisdiction  granted  to  the  Supreme  Court. 
That  carries  vnth.  it  a  very  direct  recognition  of  the  fact  that  to  the 
Supreme  Court  ig  granted  jurisdiction  of  all  controversies  between 
the  States  which  are  justiciable  in  their  nature.  "  All  the  States 
have  transferred  the  decision  of  their  controversies  to  this  court; 
each  had  a  right  to  demand  of  it  the  exercise  of  the  power  which 
they  had  made  judicial  by  the  Confederation  of  1781  and  1788; 
that  we  should  do  that  which  neither  States  nor  Congress  could  do, 


178  FEDERAL   GOVERNMENT. 

settle  the  controversies  between  them."  Rhode  Island  v.  Massa- 
chusetts, 12  Pet.  657,  743. 

Under  the  same  general  grant  of  judicial  power  jurisdiction 
over  suits  brought  by  the  United  States  has  been  sustained. 
United  States  v.  Texas,  143  U.  S.  621;  s.  c,  162  U.  S.  1;  United 
States  V.  Michigan,  190  U.  S.  379. 

The  exemption  of  the  United  States  to  suit  in  one  of  its  own 
courts  without  its  consent  has  been  repeatedly  recognized.  Kansas 
V.  United  States,  204  U.  S.  331,  341,  and  cases  cited. 

Turning  now  to  the  controversy  as  here  presented,  it  is  whether 
Kansas  has  a  right  to  the  continuous  flow  of  the  waters  of  the 
Arkansas  River,  as  that  flow  existed  before  any  human  interference 
therewith,  or  Colorado  the  right  to  appropriate  the  waters  of  that 
stream  so  as  to  prevent  that  continuous  flow,  or  that  the  amount 
of  the  flow  is  subject  to  the  superior  authority  and  supervisory 
control  of  the  United  States.  While  several  of  the  defendant 
corporations  have  answered,  it  is  unnecessary  to  specially  consider 
their  defenses,  for  if  the  case  against  Colorado  fails  it  fails  also  as 
against  them.  Colorado  denies  that  it  is  in  any  substantial 
manner  diminishing  the  flow  of  the  Arkansas  River  into  Kansas. 
If  that  be  true  then  it  is  in  no  way  infringing  upon  the  rights  of 
Kansas.  If  it  is  diminishing  that  flow  has  it  an  absolute  right  to 
determine  for  itself  the  extent  to  which  it  will  diminish  it,  even  to 
the  entire  appropriation  of  the  water  ?  And  if  it  has  not  that 
absolute  right  is  the  amount  of  appropriation  that  it  is  now  making 
such  an  infringement  upon  the  rights  of  Kansas  as  to  call  for 
judicial  interference  ?  Is  the  question  one  solely  between  the 
States  or  is  the  matter  subject  to  national  legislative  regulation, 
and, 'if  the  latter,  to  what  extent  has  that  regulation  been  carried  ? 
Clearly  this  controversy  is  one  of  a  justiciable  nature.  The  right 
to  the  flow  of  a  stream  was  one  recognized  at  common  law,  for  a 
trespass  upon  which  a  cause  of  action  existed. 

The  primary  question  is,  of  course,  of  national  control.  For, 
if  the  Nation  has  a  right  to  regulate  the  flow  of  the  waters,  we 
must  inquire  what  it  has  done  in  the  way  of  regulation.  If  it 
has  done  nothing  the  further  question  will  then  arise,  what  are 
the  respective  rights  of  the  two  States  in  the  absence  of  national 
regulation  ?  Congress  has,  by  virtue  of  the  grant  to  it  of  power 
to  regulate  commerce  "  among  the  several  States,"  extensive 
control  over  the  highways,  natural  or  artificial,  upon  which  such 
commerce  may  be  carried.     It  may  prevent  or  remove  obstructions 


KANSAS   V.    COLORADO.  179 

in  the  natural  waterways  and  preserve  the  navigability  of  those 
ways.  .  .  . 

If  in  the  present  case  the  National  Government  was  asserting, 
as  against  either  Kansas  or  Colorado,  that  the  appropriation  for 
the  purposes  of  irrigation  of  the  waters  of  the  Arkansas  was  affect- 
ing the  navigability  of  the  stream,  it  would  become  our  duty  to 
determine  the  truth  of  the  charge.  But  the  Government  makes 
no  such  contention.  .  .  . 

It  rests  its  petition  of  intervention  upon  its  alleged  duty  of 
legislating  for  the  reclamation  of  arid  lands;  alleges  that  in  or 
near  the  Arkansas  River,  as  it  runs  through  Kansas  and  Colorado, 
are  large  tracts  of  those  lands;  that  the  National  Government  is 
itself  the  owner  of  many  thousands  of  acres;  that  it  has  the  right 
to  make  such  legislative  provision  as  in  its  judgment  is  needful 
for  the  reclamation  of  all  these  arid  lands  and  for  that  purpose  to 
appropriate  the  accessible  waters.  .  .  . 

In  other  words,  the  determination  of  the  rights  of  the  two 
States  inter  sese  in  regard  to  the  flow  of  waters  in  the  Arkansas 
River  is  subordinate  to  a  superior  right  on  the  part  of  the  National 
Government  to  control  the  whole  system  of  the  reclamation  of 
arid  lands.  That  involves  the  question  whether  the  reclamation 
of  arid  lands  is  one  of  the  powers  granted  to  the  General  Govern- 
ment. As  heretofore  stated,  the  constant  declaration  of  this  court 
from  the  beginning  is  that  this  Government  is  one  of  enumerated 
powers.  "  The  Government,  then,  of  the  United  States,  can 
claim  no  powers  which  are  not  granted  to  it  by  the  Constitution, 
and  the  powers  actually  granted  must  be  such  as  are  expressly 
given,  or  given  by  necessary  implication."  Story,  J.,  in  Martin  v. 
Hunter's  Lessee,  1  Wheat.  304,  326.  "  The  Government  of  the 
United  States  is  one  of  delegated,  limited,  and  enumerated  powers." 
United  States  v.  Harris,  106  U.  S.  629,  635. 

Turning  to  the  enumeration  of  the  powers  granted  to  Congress 
by  the  eighth  section  of  the  first  article  of  the  Constitution,  it  is 
enough  to  say  that  no  one  of  them  by  any  implication  refers  to 
the  reclamation  of  arid  lands.  .  .  .  The  Constitution  is  not  to 
be  construed  technically  and  narrowly,  as  an  indictment,  or  even 
as  a  grant  presumably  against  the  interest  of  the  grantor,  and 
passing  only  that  which  is  clearly  included  within  its  language, 
but  as  creating  a  system  of  government  whose  provisions  are 
designed  to  make  effective  and  operative  all  the  governmental 
powers  granted.     Yet  while  so  construed  it  still  is  true  that  no 


180  FEDERAL   GOVERNMENT. 

independent  and  unmentioned  power  passes  to  the  National 
Government  or  can  rightfully  be  exercised  by  the  Congress. 

We  must  look  beyond  section  8  for  Congressional  authority 
over  arid  lands,  and  it  is  said  to  be  found  in  the  second  para- 
graph of  section  3  of  Article  IV,  reading:  "The  Congress  shall 
have  power  to  dispose  of  and  make  all  needful  rules  and  regu- 
lations respecting  the  territory  or  other  property  belonging  to 
the  United  States;  and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  prejudice  any  claims  of  the  United  States,  or  of 
any  particular  State." 

The  full  scope  of  this  paragraph  has  never  been  definitely 
settled.  .  .  .  But  clearly  it  does  not  grant  to  Congress  any 
legislative  control  over  the  States,  and  must,  so  far  as  they  are 
concerned,  be  limited  to  authority  over  the  property  belonging 
to  the  United  States  within  their  limits.  Appreciating  the  force 
of  this,  counsel  for  the  Government  relies  upon  "  the  doctrine  of 
sovereign  and  inherent  power,"  adding  "  I  am  aware  that  in  ad- 
vancing this  doctrine  I  seem  to  challenge  great  decisions  of  the 
court,  and  I  speak  with  deference."  His  argument  runs  sub- 
stantially along  this  line:  All  legislative  power  must  be  vested 
in  either  the  state  or  the  National  Government;  no  legislative 
powers  belong  to  a  state  government  other  than  those  which 
affect  solely  the  internal  affairs  of  that  State;  consequently  all 
powers  which  are  national  in  their  scope  must  be  found  vested  in 
the  Congress  of  the  United  States.  But  the  proposition  that  there 
are  legislative  powers  affecting  the  Nation  as  a  whole  which  belong 
to,  although  not  expressed  in  the  grant  of  powers,  is  in  direct 
conflict  with  the  doctrine  that  this  is  a  government  of  enumerated 
powers.  That  this  is  such  a  government  clearly  appears  from  the 
Constitution,  independently  of  the  Amendments,  for  otherwise 
there  would  be  an  instrument  granting  certain  specified  things 
made  operative  to  grant  other  and  distinct  things.  This  natural 
construction  of  the  original  body  of  the  Constitution  is  made 
absolutely  certain  by  the  Tenth  Amendment.  .  .  .  This  Article  X 
is  not  to  be  shorn  of  its  meaning  by  any  narrow  or  technical  con- 
struction, but  is  to  be  considered  fairly  and  liberally  so  as  to  give 
effect  to  its  scope  and  meaning.^  .  .  . 

But  it  is  useless  to  pursue  the  inquiry  further  in  this  direction. 
It  is  enough  for  the  purposes  of  this  case  that  each  State  has  full 

1  Here  was  quoted  Fairbank  v.  United  States,  181  U.  S.  283,  288  (1901). 
—  Ed. 


KANSAS   V.    COLORADO.  181 

jurisdiction  over  the  lands  within  its  borders,  including  the  beds 
of  streams  and  other  waters.  .  .  . 

It  docs  not  follow,  however,  that  because  Congress  cannot 
determine  the  rule  which  shall  control  between  the  two  States  or 
because  neither  State  can  enforce  its  own  policy  upon  the  other, 
that  the  controversy  ceases  to  be  one  of  a  justiciable  nature,  or 
that  there  is  no  power  which  can  take  cognizance  of  the  contro- 
versy and  determine  the  relative  rights  of  the  two  States.  Indeed, 
the  disagreement,  coupled  with  its  effect  upon  a  stream  passing 
through  the  two  States,  makes  a  matter  for  investigation  and 
determination  by  this  court.  .  .  . 

One  cardinal  rule,  underlying  all  the  relations  of  the  States  to 
each  other,  is  that  of  equality  of  right.  Each  State  stands  on  the 
same  level  with  all  the  rest.  It  can  impose  its  own  legislation  on 
no  one  of  the  others,  and  is  bound  to  yield  its  own  views  to  none. 
Yet,  whenever,  as  in  the  case  of  Missouri  v.  Illinois,  180  U.  S.  208, 
the  action  of  one  State  reaches  through  the  agency  of  natural 
laws  into  the  territory  of  another  State,  the  question  of  the  extent 
and  the  limitations  of  the  rights  of  the  two  States  becomes  a 
matter  of  justiciable  dispute  between  them,  and  this  court  is  called 
upon  to  settle  that  dispute  in  such  a  way  as  will  recognize  the 
equal  rights  of  both  and  at  the  same  time  establish  justice  between 
them.  In  other  words,  through  these  successive  disputes  and 
decisions  this  court  is  practically  building  up  what  may  not 
improperly  be  called  interstate  common  law.  This  very  case 
presents  a  significant  illustration.  Before  either  Kansas  or 
Colorado  was  settled  the  Arkansas  River  was  a  stream  running 
through  the  territory  which  now  composes  these  two  States.  Arid 
lands  abound  in  Colorado.  Reclamation  is  possible  only  by  the 
application  of  water,  and  the  extreme  contention  of  Colorado  is 
that  it  has  a  right  to  appropriate  all  the  waters  of  this  stream  for 
the  purposes  of  irrigating  its  soil  and  making  more  valuable  its 
own  territory.  But  the  appropriation  of  the  entire  flow  of  the 
river  would  naturally  tend  to  make  the  lands  along  the  stream  in 
Kansas  1  ess  arable.  It  would  be  taking  from  the  adj  acent  territory 
that  which  had  been  the  customary  natural  means  of  preserving 
its  arable  character.  On  the  other  hand,  the  possible  conten- 
tion of  Kansas,  that  the  flowing  water  in  the  Arkansas  must,  in 
accordance  with  the  extreme  doctrine  of  the  common  law  of 
England,  be  left  to  flow  as  it  was  wont  to  flow,  no  portion  of  it 
being  appropriated  in  Colorado  for  the  purposes  of  irrigation, 
would  have  the  effect  to  perpetuate  a  desert  condition  in  portions 


182  FEDERAL   GOVERNMENT. 

of  Colorado  beyond  the  power  of  reclamation.  Surely  here  is  a 
dispute  of  a  justiciable  nature  which  must  and  ought  to  be  tried 
and  determined.  If  the  two  States  were  absolutely  independent 
nations  it  would  be  settled  by  treaty  or  by  force.  Neither  of  these 
ways  being  practicable,  it  must  be  settled  by  decision  of  this 
court.  .  .  . 

It  is  the  State  of  Kansas  which  invokes  the  action  of  this  court, 
charging  that  through  the  action  of  Colorado  a  large  portion  of 
its  territory  is  threatened  with  disaster.  In  this  respect  it  is  in  no 
manner  evading  the  provisions  of  the  Eleventh  Amendment  to  the 
Federal  Constitution.  It  is  not  acting  directly  and  solely  for  the 
benefit  of  any  individual  citizen  to  protect  his  riparian  rights. 
Beyond  its  property  rights  it  has  an  interest  as  a  State  in  this  large 
tract  of  land  bordering  on  the  Arkansas  River.  Its  prosperity 
affects  the  general  welfare  of  the  State.  The  controversy  rises, 
therefore,  above  a  mere  question  of  local  private  right  and  involves 
a  matter  of  state  interest,  and  must  be  considered  from  that 
standpoint.  ... 

And  here  we  must  notice  the  local  law  of  Kansas  .  .  .  pre- 
mising that  the  views  expressed  in  this  opinion  are  to  be  confined 
to  a  case  in  which  the  facts  and  the  local  law  of  the  two  States  are 
as  here  disclosed.^  .  .  . 

As  Kansas  thus  recognizes  the  right  of  appropriating  the  waters 
of  a  stream  for  the  purposes  of  irrigation,  subject  to  the  condition 
of  an  equitable  division  between  the  riparian  proprietors,  she 
cannot  complain  if  the  same  rule  is  administered  between  herself 
and  a  sister  State.  And  this  is  especially  true  when  the  waters 
are,  except  for  domestic  purposes,  practically  useful  only  for 
purposes  of  irrigation.  .  .  . 

Summing  up  our  conclusions,  we  are  of  the  opinion  .  .  .  that 
the  appropriation  of  the  waters  of  the  Arkansas  by  Colorado,  for 
purposes  of  irrigation,  has  diminished  the  flow  of  water  into  the 
State  of  Kansas;  that  the  result  of  that  appropriation  has  been 
the  reclamation  of  large  areas  in  Colorado,  transforming  thousands 
of  acres  into  fertile  fields  and  rendering  possible  their  occupation 
and  cultivation  when  otherwise  they  would  have  continued  barren 
and  unoccupied;  that  while  the  influence  of  such  diminution  has 
been  of  perceptible  injury  to  portions  of  the  Arkansas  Valley  in 
Kansas,  particularly  those  portions  closest  to  the  Colorado  line, 

^  Here  waa  quoted  the  syllabus  of  Clark  v.  Allaman,  71  Kansas,  206  (1905). 
—  Ed. 


KAJfSAS   V.    COLORADO,  183 

yet  to  the  great  body  of  the  valley  it  has  worked  little,  if  any, 
detriment,  and  regarding  the  interests  of  both  States  and  the  right 
of  each  to  receive  benefit  through  irrigation  and  in  any  other 
manner  from  the  waters  of  this  stream,  we  are  not  satisfied  that 
Kansas  has  made  out  a  case  entitling  it  to  a  decree.  .  .  . 

The  decree  which,  therefore,  will  be  entered  will  be  one  dis- 
missing the  petition  of  the  intervenor,  without  prejudice  to  the 
rights  of  the  United  States  to  take  such  action  as  it  shall  deem 
necessary  to  preserve  or  improve  the  navigability  of  the  Arkansas 
River.  The  decree  will  also  dismiss  the  bill  of  the  State  of  Kansas 
as  against  all  the  defendants,  without  prejudice  to  the  right  of  the 
plaintiff  to  institute  new  proceedings  whenever  it  shall  appear  that 
through  a  material  increase  in  the  depletion  of  the  waters  of  the 
Arkansas  by  Colorado,  its  corporations  or  citizens,  the  substantial 
interests  of  Kansas  are  being  injured  to  the  extent  of  destroying  the 
equitable  apportionment  of  benefits  between  the  two  States 
resulting  from  the  flow  of  the  river. ^  Each  party  will  pay  its  own 
costs.  .  .  . 

White  and  McKenna,  JJ.,  concur  in  the  result. 
Moody,  J.,  took  no  part  in  the  decision  of  this  case. 

1  See  Georgia  v.  Tennessee  Copper  Co.,  206  U.  S.  230  (1907),  — as  to 
noxious  fumes  polluting  the  air  of  a  neighboring  State  and  injuring  vegeta- 
tion. —  Ed. 


184  FEDERAL   GOVERNMENT. 

COYLE  V.  SMITH,  Secretary  of  State  of  Oklahoma. 

Supreme  Court  of  the  United  States.     1911. 

[221  United  States,  559.]  i 

Error  to  the  Supreme  Court  of  Oklahoma,  to  review  a  judgment 
upholding  a  State  legislative  act  of  December  29,  1910,  for  the 
removal  of  the  capital  from  Guthrie  to  Oklahoma  City.  The 
Enabling  Act  of  Congress,  June  16,  1906,  had  provided,  among 
other  limitations  on  the  projected  State,  that  the  capital  "  shall 
temporarily  be  at  the  city  of  Guthrie  and  shall  not  be  changed 
therefrom  previous  to  A.  D.  1913,"  and  that  the  constitutional 
convention  "  shall,  by  ordinance  irrevocable,  accept  the  terms  and 
conditions  of  this  act."  The  constitutional  convention  framed  a 
constitution  containing  nothing  as  to  the  capital,  but  it  framed  " 
and  adopted  a  separate  ordinance  accepting  the  terms  and  condi- 
tions of  the  Enabling  Act.  The  constitution  and  this  ordinance 
were  submitted  to  the  people  simultaneously  and  separately  and 
were  ratified. 

Frank  Dale,  C.  G.  Hornor  and  John  H.  Burford,  with  whom 
A.  G.  C.  Bierer,  Frank  B.  Burford,  and  Benj.  F.  Hegler  were  on  the 
brief,  for  plaintiff  in  error. 

Charles  West,  Attorney  General  of  Oklahoma,  B.  F.  Burwell  and 
J.  W.  Bailey,  with  whom  C.  B.  Stuart  and  W.  A.  Ledhetter  were  on 
the  brief,  for  defendant  in  error. 

LuRTON,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  power  to  locate  its  own  seat  of  government  and  to  deter- 
mine when  and  how  it  shall  be  changed  from  one  place  to  another, 
and  to  appropriate  its  own  public  funds  for  that  purpose,  are 
essentially  and  peculiarly  state  powers.  That  one  of  the  original 
thirteen  States  could  now  be  shorn  of  such  powers  by  an  act  of 
Congress  would  not  be  for  a  moment  entertained.  The  question 
then  comes  to  this:  Can  a  State  be  placed  upon  a  plane  of  in- 
equality with  its  sister  States  in  the  Union  if  the  Congress  chooses 
to  impose  conditions  which  so  operate,  at  the  time  of  its  admission  ? 
The  argument  is,  that  while  Congress  may  not  deprive  a  State  of 
any  power  which  it  possesses,  it  may,  as  a  condition  to  the  admis- 

^  An  abbreviated  statement  has  been  framed  upon  facts  given  in  the 
opinion.  —  Ed. 


COYLE   V.    SMITH.  185 

sion  of  a  new  State,  constitutionally  restrict  its  authority,  to  the 
extent  at  least,  of  suspending  its  powers  for  a  definite  time  in 
respect  to  the  location  of  its  seat  of  government.  This  contention 
is  predicated  upon  the  constitutional  power  of  admitting  new 
States  to  this  Union,  and  the  constitutional  duty  of  guaranteeing 
to  "  every  State  in  this  Union  a  republican  form  of  government." 
The  position  of  counsel  for  the  appellants  is  substantially  this: 
That  the  power  of  Congress  to  admit  new  States  and  to  determine 
whether  or  not  its  fundamental  law  is  republican  in  form,  are 
political  powers,  and  as  such,  uncontrollable  by  the  courts.  That 
Congress  may  in  the  exercise  of  such  power  impose  terms  and 
conditions  upon  the  admission  of  the  proposed  new  State,  which, 
if  accepted,  will  be  obligatory,  although  they  operate  to  deprive 
the  State  of  powers  which  it  would  otherwise  possess,  and  there- 
fore, not  admitted  upon  "  an  equal  footing  with  the  original 
States." 

The  power  of  Congress  in  respect  to  the  admission  of  new  States 
is  found  in  the  third  section  of  the  fourth  Article  of  the  Constitu- 
tion. That  provision  is  that,  "  new  States  may  be  admitted  by 
the  Congress  into  this  Union."  The  only  expressed  restriction 
upon  this  power  is  that  no  new  State  shall  be  formed  within  the 
jurisdiction  of  any  other  State,  nor  by  the  junction  of  two  or  more 
States,  or  parts  of  States,  without  the  consent  of  such  States,  as 
well  as  of  the  Congress. 

But  what  is  this  power  ?  It  is  not  to  admit  political  organiza- 
tions which  are  less  or  greater,  or  different  in  dignity  or  power, 
from  those  political  entities  which  constitute  the  Union.  It  is, 
as  strongly  put  by  counsel,  a  "  power  to  admit  States." 

The  definition  of  "  a  State  "  is  found  in  the  powers  possessed 
by  the  original  States  which  adopted  the  Constitution,  a  definition 
emphasized  by  the  terms  employed  in  all  subsequent  acts  of  Con- 
gress admitting  new  States  into  the  Union.  The  first  two  States 
admitted  into  the  Union  were  the  States  of  Vermont  and  Ken- 
tucky, one  as  of  March  4,  1791,  and  the  other  as  of  June  1, 
1792.  No  terms  or  conditions  were  exacted  from  either.  Each 
act  declares  that  the  State  is  admitted  "  as  a  new  and  entire 
member  of  the  United  States  of  America."  1  Stat.  189,  191. 
Emphatic  and  significant  as  is  the  phrase  admitted  as  "  an  entire 
member,"  even  stronger  was  the  declaration  upon  the  admission 
in  1796  of  Tennessee,  as  the  third  new  State,  it  being  declared  to 
be  "  one  of  the  United  States  of  America,"  "  on  an  equal  footing 


186  FEDERAL   GOVERNMENT. 

with  the  original  States  in  all  respects  whatsoever,"  phraseology 
which  has  ever  since  been  substantially  followed  in  admission 
acts,  concluding  with  the  Oklahoma  act,  which  declares  that 
Oklahoma  shall  be  admitted  "on  an  equal  footing  with  the 
original  States." 

The  power  is  to  admit  "  new  States  into  this  Union." 

"  This  Union  "  was  and  is  a  union  of  States,  equal  in  power, 
dignity  and  authority,  each  competent  to  exert  that  residuum  of 
sovereignty  not  delegated  to  the  United  States  by  the  Constitu- 
tion itself.  To  maintain  otherwise  would  be  to  say  that  the 
Union,  through  the  power  of  Congress  to  admit  new  States,  might 
come  to  be  a  union  of  States  unequal  in  power,  as  including  States 
whose  powers  were  restricted  only  by  the  Constitution,  with  others 
whose  powers  had  been  further  restricted  by  an  act  of  Congress 
accepted  as  a  condition  of  admission.  Thus  it  would  result,  first, 
that  the  powers  of  Congress  would  not  be  defined  by  the  Constitu- 
tion alone,  but  in  respect  to  new  States,  enlarged  or  restricted  by 
the  conditions  imposed  upon  new  States  by  its  own  legislation 
admitting  them  into  the  Union;  and,  second,  that  such  new  States 
might  not  exercise  all  of  the  powers  which  had  not  been  delegated 
by  the  Constitution,  but  only  such  as  had  not  been  further  bar- 
gained away  as  conditions  of  admission.  .  .  . 

If  anything  was  needed  to  complete  the  argument  against  the 
assertion  that  Oklahoma  has  not  been  admitted  to  the  Union  upon 
an  equality  of  power,  dignity  and  sovereignty  with  Massachusetts 
or  Virginia,  it  is  afforded  by  the  express  provision  of  the  act  of 
admission,  by  which  it  is  declared  that  when  the  people  of  the 
proposed  new  State  have  complied  with  the  terms  of  the  act  that 
it  shall  be  the  duty  of  the  President  to  issue  his  proclamation,  and 
that  "  thereupon  the  proposed  State  of  Oklahoma  shall  be  deemed 
admitted  by  Congress  into  the  Union  under  and  by  virtue  of  this 
act,  on  an  equal  footing  with  the  original  States.' '  The  proclama- 
tion has  been  issued  and  the  Senators  and  Representatives  from 
the  State  admitted  to  their  seats  in  the  Congress. 

Has  Oklahoma  been  admitted  upon  an  equal  footing  with  the 
original  States  ?  If  she  has,  she  by  virtue  of  her  jurisdictional 
sovereignty  as  such  a  State  may  determine  for  her  own  people  the 
proper  location  of  the  local  seat  of  government.  She  is  not  equal 
in  power  to  them  if  she  cannot.  .  .  . 

To  this  we  may  add  that  the  constitutional  equality  of  the 
States  is  essential  to  the  harmonious  operation  of  the  scheme  upon 


COYLE    V.    SMITH.  187 

which  the  Republic  was  organized.  When  that  equahty  dis- 
appears we  may  remain  a  free  people,  but  the  Union  will  not  be 
the  Union  of  the  Constitution. 

Judgment  affirmed.^ 
McKenna  and  Holmes,  JJ.,  dissent. 

*  On  the  present  effect  of  the  Ordinance  of  1787  as  to  the  Territory  North- 
west of  the  River  Ohio,  see  Escanaba  Company  v.  Chicago,  107  U.  S.  678 
(1882),  and  Cincinnati  v.  L.  &  N.  R.  Co.,  223  U.  S.  390  (1912).  —  Ed. 


CHAPTER  III. 

THE  DISTRICT  OF  COLUMBIA,  THE  TERRITORIES, 

THE  INSULAR  POSSESSIONS,  AND  KINDRED  TOPICS: 

OR  QUASI- IMPERIAL  GOVERNMENT. 

HEPBURN  AND   DUNDAS  v.  ELLZEY. 

Supreme  Court  of  the  United  States.    1805. 

[2  Cranch,  445.] 

This  was  a  question  certified  from  the  circuit  court  for  the 
fifth  circuit,  holden  in  the  Virginia  district,  on  which  the  opinions 
of  the  judges  of  that  court  were  opposed.  (2  U.  S.  Stat.  159, 
sec.  6.) 

The  certificate  sets  forth  that  "  in  this  cause  it  occurred  as  a 
question  whether  Hepburn  and  Dundas,  the  plaintiffs  in  this 
cause,  who  are  citizens  and  residents  of  the  District  of  Columbia, 
and  are  so  stated  in  the  pleadings,  can  maintain  an  action  in  this 
court  against  the  defendant  who  is  a  citizen  and  inhabitant  of 
the  commonwealth  of  Virginia,  and  is  also  stated  so  to  be  in  the 
pleadings,  or  whether  for  want  of  jurisdiction  the  said  suit  ought 
not  to  be  dismissed." 

E.  J.  Lee,  for  the  plaintiffs;  and  C.  Lee,  contra. 

Marshall,  C.  J.,  dehvered  the  opinion  of  the  court. 

The  question  in  this  case  is  whether  the  plaintiffs,  as  residents 
of  the  district  of  Columbia,  can  maintain  an  action  in  the  circuit 
court  of  the  United  States  for  the  district  of  Virginia. 

This  depends  on  the  act  of  congress  describing  the  jurisdiction 
of  that  court.  That  act  gives  jurisdiction  to  the  circuit  courts 
in  cases  between  a  citizen  of  the  state  in  which  the  suit  is  brought, 
and  a  citizen  of  another  state.  To  support  the  jurisdiction  in 
this  case  therefore  it  must  appear  that  Columbia  is  a  state. 

On  the  part  of  the  plaintiffs  it  has  been  urged  that  Columbia 
is  a  distinct  pohtical  society;  and  is  therefore  "  a  state  "  according 
to  the  definitions  of  writers  on  general  law. 

This  is  true.  But  as  the  act  of  congress  obviously  uses  the 
word  "  state  "  in  reference  to  that  term  as  used  in  the  Constitution, 
it  becomes  necessary  to  inquire  whether  Columbia  is  a  state  in 


HEPBURN    V.    ELLZEY,  189 

the  sense  of  that  instrument.  The  result  of  that  examination  is 
a  conviction  that  the  members  of  the  American  confederacy  only 
are  the  states  contemplated  in  the  Constitution. 

The  House  of  Representatives  is  to  be  composed  of  members 
chosen  by  the  people  of  the  several  states;  and  each  state  shall 
have  at  least  one  representative. 

The  senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  state. 

Each  state  shall  appoint,  for  the  election  of  the  executive,  a 
number  of  electors  equal  to  its  whole  number  of  senators  and 
representatives. 

These  clauses  show  that  the  word  state  is  used  in  the  Constitu- 
tion as  designating  a  member  of  the  union,  and  excludes  from  the 
term  the  signification  attached  to  it  by  writers  on  the  law  of 
nations.  When  the  same  term  which  has  been  used  plainly  in 
this  limited  sense  in  the  articles  respecting  the  legislative  and 
executive  departments,  is  also  employed  in  that  which  respects 
the  judicial  department,  it  must  be  understood  as  retaining  the 
sense  originally  given  to  it. 

Other  passages  from  the  Constitution  have  been  cited  by  the 
plaintiffs  to  show  that  the  term  state  is  sometimes  used  in  its 
more  enlarged  sense.  But  on  examining  the  passages  quoted, 
they  do  not  prove  what  was  to  be  shown  by  them. 

It  is  true  that  as  citizens  of  the  United  States,  and  of  that 
particular  district  which  is  subject  to  the  jurisdiction  of  congress, 
it  is  extraordinary  that  the  courts  of  the  United  States,  which  are 
open  to  aliens,  and  to  the  citizens  of  every  state  in  the  union, 
should  be  closed  upon  them.  —  But  this  is  a  subject  for  legis- 
lative, not  for  judicial  consideration. 

The  opinion  to  be  certified  to  the  circuit  court  is  that  that 
court  has  no  jurisdiction  in  the  case.^ 

1  See  Barney  v.  Baltimore,  6  Wall.  280  (1867);  Cissel  v.  McDonald,  16 
Blatch.  C.  C.  150  (1879);  Hooe  v.  Jamieson,  166  U.  S.  395  (1897).  Compare 
Loughborough  v.  Blake,  5  Wheat.  317  (1820).  —  Ed. 


190  DISTRICT   OF   COLUMBIA,    ETC. 

CORPORATION  OF  NEW  ORLEANS  v.  WINTER  et  al. 

Supreme  Court  of  the  United  States.     1816. 
[1  Wheaton,  91.] 

Error  from  the  district  court  for  the  district  of  Louisiana. 
The  defendants  in  error  commenced  their  suit  in  the  said  court, 
to  recover  the  possession  and  property  of  certain  lands  in  the  city 
of  New  Orleans;  claiming  title  as  the  heirs  of  Elisha  Winter, 
deceased,  under  an  alleged  grant  from  the  Spanish  government, 
in  1791;  which  lands,  it  was  stated,  were  afterwards  reclaimed 
by  the  Baron  de  Carondelet,  governor  of  the  province  of  Louisiana, 
for  the  use  of  fortifications.  One  of  the  parties,  petitioners  in 
the  court  below,  was  described  in  the  record  as  a  citizen  of  the 
state  of  Kentucky;  and  the  other,  as  a  citizen  of  the  Mississippi 
territory.  The  petitioners  recovered  a  judgment  in  the  court 
below,  from  which  a  writ  of  error  was  brought. 

Winder  and  Harper,  for  the  plaintiffs  in  error;   and  Key,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  and, 
after  stating  the  facts,  proceeded  as  follows: 

The  proceeding  of  the  court,  therefore,  is  arrested  in  limine, 
by  a  question  respecting  its  jurisdiction.  In  the  case  of  Hepburn 
&  Dundas  v.  Ellzey,  this  court  determined,  on  mature  considera- 
tion, that  a  citizen  of  the  district  of  Columbia  could  not  maintain 
a  suit  in  the  circuit  court  of  the  United  States.  That  opinion  is 
still  retained. 

It  has  been  attempted  to  distinguish  a  Territory  from  the 
district  of  Columbia;  but  the  court  is  of  opinion,  that  this  dis- 
tinction cannot  be  maintained.  They  may  differ  in  many  respects, 
but  neither  of  them  is  a  state,  in  the  sense  in  which  that  term  is 
used  in  the  Constitution.  Every  reason  assigned  for  the  opinion 
of  the  court,  that  a  citizen  of  Columbia  was  not  capable  of  suing 
in  the  courts  of  the  United  States,  under  the  Judiciary  Act,  is 
equally  applicable  to  a  citizen  of  a  territory.  Gabriel  Winter, 
then,  being  a  citizen  of  the  Mississippi  Territory,  was  incapable 
of  maintaining  a  suit  alone  in  the  circuit  court  of  Louisiana.  Is 
his  case  mended  by  being  associated  with  others  who  are  capable 
of  suing  in  that  court?    In  the  case  of  Strawbridge  et  al.  v.  Curtis* 

1  3Cranch,267  (1806).  See  also  Coal  Co.  y.Blatchford,  11  Wall.  172  (1870); 
Peninsular  Iron  Co.  v.  Stone,  121  U.  S.  631  (1887);  Smith  v.  Lyon,  133  U.  S. 
315  (1890).  —  Ed. 


1 


AMERICAN    INSURANCE    COMPANY   V.    CANTER.  191 

et  al.,  it  was  decided,  that  where  a  joint  interest  is  prosecuted,  the 
jurisdiction  cannot  be  sustained,  unless  each  individual  be  en- 
titled to  claim  that  jurisdiction.  In  this  case  it  has  been  doubted, 
whether  the  parties  might  elect  to  sue  jointly  or  severally.  How- 
ever this  may  be,  having  elected  to  sue  jointly,  the  court  is  in- 
capable of  distinguishing  their  case,  so  far  as  respects  jurisdiction, 
from  one  in  which  they  were  compelled  to  unite.  The  circuit 
court  of  Louisiana,  therefore,  had  no  jurisdiction  of  the  cause, 
and  their  judgment  must,  on  that  account,  be  reversed,  and  the 
petition  dismissed.  Judgment  reversed. 


AMERICAN  INSURANCE  COMPANY  and  OCEAN 

INSURANCE  COMPANY,  Appellants,  v.  THREE  HUNDRED 

FIFTY-SIX  BALES  OF  COTTON:  DAVID  CANTER, 

Claimant  and  Appellee. 

Supreme  Court  op  the  United  States.     1828. 
[1  Peters,  511.1 1 

Appeal  from  the  Circuit  Court  of  South  Carolina.^ 

Ogden,  for  the  appellants;   and  Whipple  and  Webster,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  plaintiffs  filed  their  libel  in  this  cause  in  the  District  Court 
of  South  Carolina,  to  obtain  restitution  of  356  bales  of  cotton, 
part  of  the  cargo  of  the  ship  Point  a  Petre;  which  had  been 
insured  by  them  on  a  voyage  from  New  Orleans  to  Havre  de 
Grace,  in  France.  The  Point  a  Petre  was  wrecked  on  the  coast 
of  Florida,  the  cargo  saved  by  the  inhabitants,  and  carried  into 
Key  West,  where  it  was  sold  for  the  purpose  of  satisfying  the 
salvors;  by  virtue  of  a  decree  of  a  Court,  consisting  of  a  notary 
and  five  jurors,  which  was  erected  by  an  Act  of  the  territorial 
legislature  of  Florida.  The  owners  abandoned  to  the  under- 
writers, who  having  accepted  the  same,  proceeded  against  the 
property;  alleging  that  the  sale  was  not  made  by  order  of  a 
Court  competent  to  change  the  property. 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 
*  The  opinion  of  Johnson,  J.,  in  the  Circuit  Court  is  reported  in  1  Peters, 
615,  note.  —  Ed. 


192  DISTRICT   OF    COLUMBIA,    ETC. 

David  Canter  claimed  the  cotton  as  a  bona  fide  purchaser, 
under  the  decree  of  a  competent  Court,  which  awarded  seventy- 
six  per  cent  to  the  salvors,  on  the  value  of  the  property  saved. 

The  District  Judge  pronounced  the  decree  of  the  territorial 
Court  a  nullity,  and  awarded  restitution  to  the  libellants  of 
such  part  of  the  cargo  as  he  supposed  to  be  identified  by  the 
evidence;  deducting  therefrom  a  salvage  of  fifty  per  cent. 

The  libellants  and  claimant  both  appealed.  The  Circuit 
Court  reversed  the  decree  of  the  District  Court,  and  decreed 
the  whole  cotton  to  the  claimant,  with  costs;  on  the  ground 
that  the  proceedings  of  the  Court  at  Key  West  were  legal,  and 
transferred  the  property  to  the  purchaser. 

From  this  decree  the  libellants  have  appealed  to  this  Court. 

The  cause  depends,  mainly,  on  the  question  whether  the  prop- 
erty in  the  cargo  saved,  was  changed  by  the  sale  at  Key  West. 
The  conformity  of  that  sale  to  the  order  under  which  it  was 
made,  has  not  been  controverted.  Its  validity  has  been  denied, 
on  the  ground  that  it  was  ordered  by  an  incompetent  tribunal. 

The  tribunal  was  constituted  by  an  Act  of  the  territorial  legis- 
lature of  Florida,  passed  on  the  4th  July,  1823,  which  is  inserted 
in  the  record.  That  Act  purports  to  give  the  power  which  has 
been  exercised;  consequently  the  sale  is  valid,  if  the  territorial 
legislature  was  competent  to  enact  the  law. 

The  course  which  the  argument  has  taken,  will  require,  that, 
in  deciding  this  question,  the  Court  should  take  into  view  the 
relation  in  which  Florida  stands  to  the  United  States. 

The  Constitution  confers  absolutely  on  the  government  of  the 
Union,  the  powers  of  making  war,  and  of  making  treaties;  conse- 
quently, that  government  possesses  the  power  of  acquiring  terri- 
tory, either  by  conquest  or  by  treaty. 

The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued, 
to  consider  the  holding  of  conquered  territory  as  a  mere  military 
occupation,  until  its  fate  shall  be  determined  at  the  treaty  of 
peace.  If  it  be  ceded  by  the  treaty,  the  acquisition  is  confirmed, 
and  the  ceded  territory  becomes  a  part  of  the  nation  to  which  it 
is  annexed;  either  on  the  terms  stipulated  in  the  treaty  of  cession, 
or  on  such  as  its  new  master  shall  impose.  On  such  transfer  of 
territory,  it  has  never  been  held,  that  the  relations  of  the  in- 
habitants with  each  other  undergo  any  change.  Their  relations 
with  their  former  sovereign  are  dissolved,  and  new  relations  are 
created  between  them  and  the  government  which  has  acquired 
their  territory.    The  same  Act  which  transfers  their  country,  trans- 


AMERICAN   INSURANCE   COMPANY    V.    CANTER.  193 

fers  the  allegiance  of  those  who  remain  in  it;  and  the  law,  which 
may  be  denominated  political,  is  necessarily  changed,  although 
that  which  regulates  the  intercourse,  and  general  conduct  of 
individuals,  remains  in  force,  until  altered  by  the  newly  created 
power  of  the  state. 

On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the  United 
States.  The  6th  article  of  the  treaty  of  cession,  contains  the 
following  provision  —  "  The  inhabitants  of  the  territories,  which 
his  Catholic  majesty  cedes  to  the  United  States  by  this  treaty, 
shall  be  incorporated  in  the  Union  of  the  United  States,  as  soon 
as  may  be  consistent  with  the  principles  of  the  federal  Consti- 
tution; and  admitted  to  the  enjoyment  of  the  privileges,  rights, 
and  immunities  of  the  citizens  of  the  United  States." 

This  treaty  is  the  law  of  the  land,  and  admits  the  inhabi- 
tants of  Florida  to  the  enjoyment  of  the  privileges,  rights,  and 
immunities,  of  the  citizens  of  the  United  States.  It  is  unneces- 
sary to  inquire,  whether  this  is  not  their  condition,  independent 
of  stipulation.  They  do  not,  however,  participate  in  political 
power;  they  do  not  share  in  the  government,  till  Florida  shall 
become  a  state.  In  the  mean  time,  Florida  continues  to  be  a 
territory  of  the  United  States;  governed  by  virtue  of  that  clause 
in  the  Constitution,  which  empowers  Congress  "  to  make  all 
needful  rules  and  regulations,  respecting  the  territory,  or  other 
property  belonging  to  the  United  States." 

Perhaps  the  power  of  governing  a  territory  belonging  to  the 
United  States,  which  has  not,  by  becoming  a  state,  acquired  the 
means  of  self-government,  may  result  necessarily  from  the  facts, 
that  it  is  not  within  the  jurisdiction  of  any  particular  state, 
and  is  within  the  power  and  jurisdiction  of  the  United  States. 
The  right  to  govern,  may  be  the  inevitable  consequence  of  the 
right  to  acquire  territory.  Whichever  may  be  the  source  whence 
the  power  is  derived,  the  possession  of  it  is  unquestioned.  In 
execution  of  it.  Congress,  in  1822,  passed  "  an  Act  for  the  estab- 
lishment of  a  territorial  government  in  Florida  "  ;  and,  on  the 
3d  of  March,  1823,  passed  another  Act  to  amend  the  Act  of  1822. 
Under  this  Act,  the  territorial  legislature  enacted  the  law  now 
under  consideration. 

The  5th  section  of  the  Act  of  1823,  creates  a  territorial  legis- 
lature, which  shall  have  legislative  powers  over  all  rightful  objects 
of  legislation;  but  no  law  shall  be  valid,  which  is  inconsistent 
with  the  laws  and  Constitution  of  the  United  States. 


194  DISTRICT   OF    COLUMBIA,    ETC. 

The  7th  section  enacts  "  That  the  judicial  power  shall  be 
vested  in  two  Superior  Courts,  and  in  such  inferior  Courts,  and 
justices  of  the  peace,  as  the  legislative  council  of  the  territory- 
may  from  time  to  time  establish."  After  prescribing  the  place 
of  session,  and  the  jurisdictional  limits  of  each  Court,  the  Act 
proceeds  to  say;  "  within  its  limits  herein  described,  each  Court 
shall  have  jurisdiction  in  all  criminal  cases,  and  exclusive  juris- 
diction in  all  capital  offences;  and  original  jurisdiction  in  all 
civil  cases  of  the  value  of  one  hundred  dollars,  arising  under  and 
cognizable  by  the  laws  of  the  territory,  now  in  force  therein,  or 
which  may,  at  any  time,  be  enacted  by  the  legislative  council 
thereof." 

The  8th  section  enacts  "  That  each  of  the  said  Superior  Courts 
shall  moreover  have  and  exercise  the  same  jurisdiction  within  its 
limits,  in  all  cases  arising  under  the  laws  and  Constitution  of  the 
United  States,  which,  by  an  Act  to  establish  the  judicial  Courts 
of  the  United  States,  approved  the  24th  of  September,  1789, 
and  an  Act  in  addition  to  the  Act,  entitled  an  Act  to  establish 
the  judicial  Courts  of  the  United  States,  approved  the  2d  of 
March,  1793,  was  vested  in  the  Court  of  Kentucky  district." 

The  powers  of  the  territorial  legislature  extend  to  all  rightful 
objects  of  legislation,  subject  to  the  restriction,  that  their  laws 
shall  not  be  "  inconsistent  with  the  laws  and  Constitution  of  the 
United  States."  As  salvage  is  admitted  to  come  within  this 
description,  the  Act  is  valid,  unless  it  can  be  brought  within  the 
restriction. 

The  counsel  for  the  libellants  contend,  that  it  is  inconsistent 
with  both  the  law  and  the  Constitution.  .  .  . 

The  jurisdiction  of  the  Superior  Courts,  is  declared  to  be  exclu- 
sive over  capital  offences;  on  every  other  question  over  which 
those  Courts  may  take  cognizance  by  virtue  of  this  section, 
concurrent  jurisdiction  may  be  given  to  the  inferior  Courts. 
Among  these  subjects,  are  "  all  civil  cases  arising  under  and 
cognizable  by  the  laws  of  the  territory,  now  in  force  therein,  or 
which  may  at  any  time  be  enacted  by  the  legislative  council 
thereof." 

It  has  been  already  stated,  that  all  the  laws  which  were  in 
force  in  Florida  while  a  province  of  Spain,  those  excepted  which 
were  political  in  their  character,  which  concerned  the  relations 
between  the  people  and  their  sovereign,  remained  in  force,  until 
altered   by   the  government  of  the   United  States.      Congress 


AMERICAN    INSURANCE    COMPANY   V.    CANTER.  195 

recognizes  this  principle,  by  using  the  words  "  laws  of  the  terri- 
tory now  in  force  therein."  No  laws  could  then  have  been  in 
force,  but  those  enacted  by  the  Spanish  government.  If  among 
these,  a  law  existed  on  the  subject  of  salvage,  and  it  is  scarcely 
possible  there  should  not  have  been  such  a  law,  jurisdiction  over 
cases  arising  under  it,  was  conferred  on  the  Superior  Courts,  but 
that  jurisdiction  was  not  exclusive.  A  territorial  Act,  conferring 
jurisdiction  over  the  same  cases  on  an  inferior  Court,  would  not 
have  been  inconsistent  with  this  section.  .  .  . 

It  has  been  contended,  that  by  the  Constitution  the  judicial 
power  of  the  United  States  extends  to  all  cases  of  admiralty 
and  maritime  jurisdiction;  and  that  the  whole  of  this  judicial 
power  must  be  vested  "  in  one  Supreme  Court,  and  in  such 
inferior  Courts  as  Congress  shall  from  time  to  time  ordain  and 
establish."  Hence  it  has  been  argued,  that  Congress  cannot 
vest  admiralty  jurisdiction  in  Courts  created  by  the  territorial 
legislature. 

We  have  only  to  pursue  this  subject  one  step  further,  to  per- 
ceive that  this  provision  of  the  Constitution  does  not  apply  to 
it.  The  next  sentence  declares,  that  "  the  Judges  both  of  the 
Supreme  and  inferior  Courts,  shall  hold  their  offices  during  good 
behaviour."  The  Judges  of  the  Superior  Courts  of  Florida  hold 
their  offices  for  four  years.  These  Courts,  then,  are  not  con- 
stitutional Courts,  in  which  the  judicial  power  conferred  by  the 
Constitution  on  the  general  government,  can  be  deposited.  They 
are  incapable  of  receiving  it.  They  are  legislative  Courts,  created 
in  virtue  of  the  general  right  of  sovereignty  which  exists  in  the 
government,  or  in  virtue  of  that  clause  which  enables  Congress 
to  make  all  needful  rules  and  regulations,  respecting  the  territory 
belonging  to  the  United  States.  The  jurisdiction  with  which 
they  are  invested,  is  not  a  part  of  that  judicial  power  which  is 
defined  in  the  3d  article  of  the  Constitution,  but  is  conferred  by 
Congress,  in  the  execution  of  those  general  powers  which  that 
body  possesses  over  the  territories  of  the  United  States.  Although 
admiralty  jurisdiction  can  be  exercised  in  the  states  in  those 
Courts,  only,  which  are  estabhshed  in  pursuance  of  the  3d  article 
of  the  Constitution;  the  same  limitation  does  not  extend  to  the 
territories.  In  legislating  for  them.  Congress  exercises  the 
combined  powers  of  the  general,  and  of  a  state  government. 

We  think,  then,  that  the  Act  of  the  territorial  legislature, 
erecting  the  Court  by  whose  decree  the  cargo  of  the  Point  a 


196  DISTRICT   OF    COLUMBIA,    ETC. 

Petre  was  sold,  is  not  "inconsistent  with  the  laws  and  Consti-, 
tution  of  the  United  States,"  and  is  valid.      Consequently,  the 
sale  made  in  pursuance  of  it  changed  the  property,  and  the  decree 
of  the  Circuit  Court,  awarding  restitution  of  the  property  to  the 
claimant,  ought  to  be  affirmed  with  costs.  Decree  affirmed. 


CHEROKEE  NATION  v.  STATE  OF  GEORGIA. 

Supreme  Court  of  the  United  States.     1831. 

[5  Peters,!.]^ 

This  was  a  suit  begun  in  this  Court  by  filing  a  bill  which  alleged 
that  the  complainants  are  "  the  Cherokee  nation  of  Indians,  a 
foreign  state,  not  owing  allegiance  to  the  United  States,  nor  to 
any  state  of  this  Union,  nor  to  any  prince,  potentate  or  state, 
other  than  their  own,"  and  that  "  from  time  immemorial,  the 
Cherokee  nation  have  composed  a  sovereign  and  independent  state, 
and  in  this  character  have  been  repeatedly  recognized,  and  still 
stand  recognized,  by  the  United  States,  in  the  various  treaties 
subsisting  between  their  nation  and  the  United  States." 

Sergeant  and  Wirt,  for  the  complainants;  and  no  counsel  for 
the  State  of  Georgia. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  bill  is  brought  by  the  Cherokee  nation,  praying  an  injunc- 
tion to  restrain  the  state  of  Georgia  from  the  execution  of  certain 
laws  of  that  state,  which,  as  is  alleged,  go  directly  to  annihilate 
the  Cherokees  as  a  political  society,  and  to  seize,  for  the  use  of 
Georgia,  the  lands  of  the  nation  which  have  been  assured  to  them 
by  the  United  States  in  solemn  treaties  repeatedly  made  and  still 
in  force.  .  ,  . 

Before  we  can  look  into  the  merits  of  the  case,  a  preliminary 
inquiry  presents  itself.     Has  this  court  jurisdiction  of  the  cause  ? 

The  third  article  of  the  Constitution  describes  the  extent  of 
the  judicial  power.  The  second  section  closes  an  enumeration 
of  the  cases  to  which  it  is  extended,  with  "  controversies  "  "  be- 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


CHEROKEE    NATION    V.    STATE    OF   GEORGIA.  197 

tween  a  state  or  the  citizens  thereof,  and  foreign  states,  citizens, 
or  subjects."  A  subsequent  clause  of  the  same  section  gives 
the  supreme  court  original  jurisdiction  in  all  cases  in  which  a 
state  shall  be  a  party.  The  party  defendant  may  then  unques- 
tionably be  sued  in  this  court.  May  the  plaintiff  sue  in  it  ?  Is 
the  Cherokee  nation  a  foreign  state  in  the  sense  in  which  that 
term  is  used  in  the  Constitution  ? 

The  counsel  for  the  plaintiffs  have  maintained  the  affirmative? 
of  this  proposition  with  great  earnestness  and  ability.  So  much 
of  the  argument  as  was  intended  to  prove  the  character  of  the 
Cherokees  as  a  state,  as  a  distinct  political  society,  separated 
from  others,  capable  of  managing  its  own  affairs  and  governing 
itself,  has,  in  the  opinion  of  a  majority  of  the  judges,  been  com- 
pletely successful.  They  have  been  uniformly  treated  as  a  state 
from  the  settlement  of  our  country.  The  numerous  treaties  made 
with  them  by  the  United  States  recognize  them  as  a  people  capable 
of  maintaining  the  relations  of  peace  and  war,  of  being  responsible 
in  their  poUtical  character  for  any  violation  of  their  engagements, 
or  for  any  aggression  committed  on  the  citizens  of  the  United 
States  by  any  individual  of  their  community.  Laws  have  been 
enacted  in  the  spirit  of  these  treaties.  The  acts  of  our  govern- 
ment plainly  recognize  the  Cherokee  nation  as  a  state,  and  the 
courts  are  bound  by  those  acts. 

A  question  of  much  more  difficulty  remains.  Do  the  Chero- 
kees constitute  a  foreign  state  in  the  sense  of  the  Constitution  ? 

The  counsel  have  shown  conclusively  that  they  are  not  a  state 
of  the  union,  and  have  insisted  that  individually  they  are  aliens, 
not  owing  allegiance  to  the  United  States.  An  aggregate  of 
aliens  composing  a  state  must,  they  say,  be  a  foreign  state.  Each 
individual  being  foreign,  the  whole  must  be  foreign. 

This  argument  is  imposing,  but  we  must  examine  it  more 
closely  before  we  yield  to  it.  The  condition  of  the  Indians  in 
relation  to  the  United  States  is  perhaps  unlike  that  of  any  other 
two  people  in  existence.  In  the  general,  nations  not  owang  a 
common  allegiance  are  foreign  to  each  other.  The  term  foreign 
nation  is,  with  strict  propriety,  applicable  by  either  to  the  other. 
But  the  relation  of  the  Indians  to  the  United  States  is  marked  by 
peculiar  and  cardinal  distinctions  which  exist  nowhere  else. 

The  Indian  territory  is  admitted  to  compose  a  part  of  the 
United  States.  In  all  our  maps,  geographical  treatises,  histo- 
ries, and  laws,  it  is  so  considered.  In  all  our  intercourse  \nth 
foreign  nations,  in  our  commercial  regulations,  in  any  attempt 


198  DISTRICT   OF   COLUMBIA,    ETC. 

at  intercourse  between  Indians  and  foreign  nations,  they  are 
considered  as  within  the  jurisdictional  limits  of  the  United  States, 
subject  to  many  of  those  restraints  which  are  imposed  upon  our 
own  citizens.  They  acknowledge  themselves  in  their  treaties 
to  be  under  the  protection  of  the  United  States;  they  admit  that 
the  United  States  shall  have  the  sole  and  exclusive  right  of  regu- 
lating the  trade  with  them,  and  managing  all  their  affairs  as  they 
think  proper;  and  the  Cherokees  in  particular  were  allowed  by 
the  treaty  of  Hopewell,  which  preceded  the  Constitution,  "  to  send 
a  deputy  of  their  choice,  whenever  they  think  fit,  to  congress." 
Treaties  were  made  with  some  tribes  by  the  state  of  New  York, 
under  a  then  unsettled  construction  of  the  confederation,  by  which 
they  ceded  all  their  lands  to  that  state,  taking  back  a  limited 
grant  to  themselves,  in  which  they  admit  their  dependence. 

Though  the  Indians  are  acknowledged  to  have  an  unquestion- 
able, and,  heretofore,  unquestioned  right  to  the  lands  they  occupy, 
until  that  right  shall  be  extinguished  by  a  voluntary  cession  to 
our  government;  yet  it  may  well  be  doubted  whether  those  tribes 
which  reside  within  the  acknowledged  boundaries  of  the  United 
States  can,  with  strict  accuracy,  be  denominated  foreign  nations. 
They  may,  more  correctly,  perhaps,  be  denominated  domestic 
dependent  nations.  They  occupy  a  territory  to  which  we  assert 
a  title  independent  of  their  will,  which  must  take  effect  in  point 
of  possession  when  their  right  of  possession  ceases.  Meanwhile 
they  are  in  a  state  of  pupilage.  Their  relation  to  the  United 
States  resembles  that  of  a  ward  to  his  guardian. 

They  look  to  our  government  for  protection;  rely  upon  its 
kindness  and  its  power;  appeal  to  it  for  relief  to  their  wants; 
and  address  the  president  as  their  great  father.  They  and  their 
country  are  considered  by  foreign  nations,  as  well  as  by  ourselves, 
as  being  so  completely  under  the  sovereignty  and  dominion  of 
the  United  States,  that  any  attempt  to  acquire  their  lands,  or  to 
form  a  political  connexion  with  them,  would  be  considered  by 
all  as  an  invasion  of  our  territory,  and  an  act  of  hostility. 

These  considerations  go  far  to  support  the  opinion,  that  the 
framers  of  our  Constitution  had  not  the  Indian  tribes  in  view, 
when  they  opened  the  courts  of  the  union  to  controversies  between 
a  state  or  the  citizens  thereof,  and  foreign  states.  .  .  . 

Considerable  aid  is  furnished  by  that  clause  in  the  eighth 
section  of  the  third  article,  which  empowers  congress  to  "  regulate 
commerce  with  foreign  nations,  and  among  the  several  states, 
and  with  the  Indian  tribes." 


CHEROKEE    NATION    V.    STATE    OF   GEORGIA.  199 

In  this  clause  they  are  as  clearly  contradistinguished  by  a 
name  appropriate  to  themselves,  from  foreign  nations,  as  from 
the  several  states  composing  the  union.  They  are  designated 
by  a  distinct  appellation;  and  as  this  appellation  can  be  applied 
to  neither  of  the  others,  neither  can  the  appellation  distinguishing 
either  of  the  others  be  in  fair  construction  applied  to  them.  .  .  . 

The  court  has  bestowed  its  best  attention  on  this  question, 
and,  after  mature  deliberation,  the  majority  is  of  opinion  that 
an  Indian  tribe  or  nation  within  the  United  States  is  not  a  foreign 
state  in  the  sense  of  the  Constitution,  and  cannot  maintain  an 
action  in  the  courts  of  the  United  States. 

A  serious  additional  objection  exists  to  the  jurisdiction  of  the 
court.  Is  the  matter  of  the  bill  the  proper  subject  for  judicial 
inquiry  and  decision  ?  It  seeks  to  restrain  a  state  from  the 
forcible  exercise  of  legislative  power  over  a  neighbouring  people, 
asserting  their  independence;  their  right  to  which  the  state 
denies.  On  several  of  the  matters  alleged  in  the  bill,  for  example 
on  the  laws  making  it  criminal  to  exercise  the  usual  powers  of 
self  government  in  their  own  country  by  the  Cherokee  nation, 
this  court  cannot  interpose;  at  least  in  the  form  in  which  those 
matters  are  presented. 

That  part  of  the  bill  which  respects  the  land  occupied  by  the 
Indians,  and  prays  the  aid  of  the  court  to  protect  their  possession, 
may  be  more  doubtful.  The  mere  question  of  right  might  per- 
haps be  decided  by  this  court  in  a  proper  case  v/ith  proper  parties. 
But  the  court  is  asked  to  do  more  than  decide  on  the  title.  The 
bill  requires  us  to  control  the  legislature  of  Georgia,  and  to  restrain 
the  exertion  of  its  physical  force.  The  propriety  of  such  an 
interposition  by  the  court  may  be  well  questioned.  It  savours 
too  much  of  the  exercise  of  political  power  to  be  within  the  proper 
province  of  the  judicial  department.  But  the  opinion  on  the  point 
respecting  parties  makes  it  unnecessary  to  decide  this  ques- 
tion. .  .  . 

The  motion  for  an  injunction  is  denied. 

Johnson,  J.  .  .  .  The  argument  is  that  they  were  states; 
and  if  not  states  of  the  union,  must  be  foreign  states.  But  I 
think  it  very  clear  that  the  Constitution  neither  speaks  of  them  as 
states  or  foreign  states,  but  as  just  what  they  were,  Indian  tribes; 
an  anomaly  unknown  to  the  books  that  treat  of  states,  and  which 
the  law  of  nations  would  regard  as  nothing  more  than  wandering 
hordes,  held  together  only  by  ties  of  blood  and  habit,  and  having 
neither  laws  or  government,  beyond  what  is  required  in  a  savage 


200  DISTRICT   OF   COLUMBIA,    ETC. 

state.  The  distinction  is  clearly  made  in  that  section  which 
vests  in  congress  power  to  regulate  commerce  between  the  United 
States  with  foreign  nations  and  the  Indian  tribes. 

The  language  must  be  applied  in  one  of  three  senses;  either 
in  that  of  the  law  of  nations,  or  of  the  vernacular  use,  or  that 
of  the  Constitution.  In  the  first,  although  it  means  any  state 
not  subject  to  our  laws,  yet  it  must  be  a  state  and  not  a  hunter 
horde:  in  the  vernacular,  it  would  not  be  applied  to  a  people 
within  our  limits  and  at  our  very  doors;  and  in  the  Constitu- 
tion the  two  epithets  are  used  in  direct  contradistinction.  The 
latter  words  were  unnecessary,  if  the  first  included  the  Indian 
tribes.  There  is  no  ambiguity,  though  taken  literally;  and  if 
there  were,  facts  and  circumstances  altogether  remove  it. 

But  had  I  been  sitting  alone  in  this  cause,  I  should  have  waived 
the  consideration  of  personal  description  altogether;  and  put 
my  rejection  of  this  motion  upon  the  nature  of  the  claim  set  up, 
exclusively. 

I  cannot  entertain  a  doubt  that  it  is  one  of  a  political  char- 
acter altogether,  and  wholly  unfit  for  the  cognizance  of  a  judicial 
tribunal.  .  .  . 

Baldwin,  J.  .  .  .  I  concur  in  the  opinion  of  the  court,  in 
dismissing  the  bill,  but  not  for  the  reasons  assigned.  .  .  . 

The  judicial  power  cannot  divest  the  states  of  rights  of  sover- 
eignty, and  transfer  them  to  the  Indians,  by  decreeing  them  to 
be  a  nation,  or  foreign  state,  pre-existing  and  with  rightful  juris- 
diction and  sovereignty  over  the  territory  they  occupy.  This 
would  reverse  every  principle  on  which  our  government  have 
acted  for  fifty-five  years;  and  force,  by  mere  judicial  power,  upon 
the  other  departments  of  this  government  and  the  states  of  this 
union,  the  recognition  of  the  existence  of  nations  and  states  within 
the  limits  of  both,  possessing  dominion  and  jurisdiction  paramount 
to  the  federal  and  state  constitutions.  .  .  . 

Thompson,  J.,  dissenting.  .  .  . 

Upon  the  whole,  I  am  of  opinion, 

1.  That  the  Cherokees  compose  a  foreign  state  within  the 
sense  and  meaning  of  the  Constitution,  and  constitute  a  com- 
petent party  to  maintain  a  suit  against  the  state  of  Georgia. 

2.  That  the  bill  presents  a  case  for  judicial  consideration, 
arising  under  the  laws  of  the  United  States,  and  treaties  made 
under  their  authority  with  the  Cherokee  nation,  and  which 
laws  and  treaties  have  been,  and  are  threatened  to  be  still  further 


FLEMING    V.    PAGE.  201 

violated  by  the  laws  of  the  state  of  Georgia  referred  to  in  this 
opinion. 

3.  That  an  injunction  is  a  fit  and  proper  writ  to  be  issued, 
to  prevent  the  further  execution  of  such  laws,  and  ought  there- 
fore to  be  awarded. 

And  I  am  authorised  by  my  brother  Story  to  say,  that  he 
concurs  with  me  in  this  opinion.  Motion  denied.^ 


FLEMING  et  al.  v.  PAGE,  Collector. 

Supreme  Court  of  the  United  States.     1850. 

[9  Howard,  603.]  ^ 

This  case  came  up  from  the  Circuit  Court  of  the  United  States 
for  the  Eastern  District  of  Pennsylvania,  on  a  certificate  of  division 
in  opinion  between  the  judges  thereof. 

It  was  an  action  brought  by  Fleming  and  Marshall  against 
Page,  collector  of  the  port  of  Philadelphia,  in  one  of  the  State 
courts  of  Pennsylvania,  in  1847,  to  recover  back  certain  duties 

1  In  The  Cherokee  Tobacco,  11  Wall.  616  (1870),  it  was  held  that  a  statute 
extending  the  revenue  laws  to  tobacco  "  produced  anywhere  within  the 
exterior  boundaries  of  the  United  States,  whether  the  same  shall  be  within 
a  collection  district  or  not  "  included  tobacco  produced  in  the  Indian  Territory. 

In  United  States  v.  Kagama,  118  U.  S.  375  (1886),  it  was  held  that  Con- 
gress can  give  to  the  federal  courts  jurisdiction  over  an  Indian's  crime  com- 
mitted in  an  Indian  reservation  within  a  State. 

Other  cases  as  to  Indians  are:  Johnson  v.  Mcintosh,  8  Wheat.  543  (1823); 
Worcester  v.  Georgia,  6  Pet.  515  (1832);  Mitchel  v.  United  States,  9  Pet. 
711  (1835);  United  States  v.  Rogers,  4  How.  567  (1846);  Fellows  v.  Black- 
smith, 19  How.  366  (1856) ;  Leavenworth,  &c.,  R.  Co.  v.  United  States,  92 
U.  S.  733  (1875);  United  States  v.  Forty-three  Gallons,  93  U.  S.  188  (1876). 
Matter  of  Heff,  197  U.  S.  488  (1905);  United  States  v.  Wright,  229  U.  S. 
226  (1913). 

The  statute  of  Mar.  3,  1871,  16  U.  S.  Stats,  at  Large,  566,  embodied  in 
U.  S.  R.  S.,  8.  2079,  enacted  that  hereafter  "  no  Indian  nation  or  tribe  within 
the  territory  of  the  United  States  shall  be  acknowledged  or  recognized  as  an 
independent  nation,  tribe,  or  power  with  whom  the  United  States  may  con- 
tract by  treaty";  but  the  obhgations  of  existing  treaties  were  expressly  pre- 
served. —  Ed. 

'  The  statement  has  been  abbreviated.  —  Ed. 


202  DISTRICT   OF    COLUMBIA,    ETC. 

on  goods,  wares,  and  merchandise,  imported  into  the  port  of 
Philadelphia  from  Tampico,  in  Mexico,  in  March  and  June  of 
that  year.  The  case  was  afterwards  taken  into  the  Circuit  Court 
of  the  United  States.  The  jury  found  for  the  plaintiffs.  A 
motion  was  made  in  behalf  of  the  United  States  to  set  aside  the 
verdict  and  for  a  new  trial,  the  ground  being  substantially  that 
the  judge  erred  in  charging  the  jury  that  in  1847  Tampico  was 
not  a  foreign  country  within  the  meaning  of  the  act  of  July  30, 1846, 
imposing  duties  on  goods  "  imported  from  foreign  countries." 
The  case  having  been  submitted  on  an  agreed  statement,  the 
judges  of  the  Circuit  Court  certified  a  difference  of  opinion. 

McCall  and  Webster,  for  the  plaintiffs;  and  Johnson,  Attorney 
General,  for  the  defendants. 

Taney,  C.  J.,  delivered  the  opinion  of  the  court. 

The  question  certified  by  the  Circuit  Court  turns  upon  the 
construction  of  the  act  of  Congress  of  July  30,  1846.  The  duties 
levied  upon  the  cargo  of  the  schooner  Catharine  were  the  duties 
imposed  by  this  law  upon  goods  imported  from  a  foreign  country. 
And  if  at  the  time  of  this  shipment  Tampico  was  not  a  foreign 
port  within  the  meaning  of  the  act  of  Congress,  then  the  duties 
were  illegally  charged,  and,  having  been  paid  under  protest,  the 
plaintiffs  would  be  entitled  to  recover  in  this  action  the  amount 
exacted  by  the  collector. 

The  port  of  Tampico,  at  which  the  goods  were  shipped,  and 
the  Mexican  State  of  Tamaulipas,  in  which  it  is  situated,  were 
undoubtedly  at  the  time  of  the  shipment  subject  to  the  sover- 
eignty and  dominion  of  the  United  States.  The  Mexican  au- 
thorities had  been  driven  out,  or  had  submitted  to  our  army 
and  navy;  and  the  country  was  in  the  exclusive  and  firm  pos- 
session of  the  United  States,  and  governed  by  its  military  au- 
thorities, acting  under  the  orders  of  the  President.  But  it  does 
not  follow  that  it  was  a  part  of  the  United  States,  or  that  it 
ceased  to  be  a  foreign  country,  in  the  sense  in  which  these  words 
are  used  in  the  acts  of  Congress. 

The  country  in  question  had  been  conquered  in  war.  But  the 
genius  and  character  of  our  institutions  are  peaceful,  and 
the  power  to  declare  war  was  not  conferred  upon  Congress  for 
the  purposes  of  aggression  or  aggrandizement,  but  to  enable  the 
general  government  to  vindicate  by  arms,  if  it  should  become 
necessary,  its  own  rights  and  the  rights  of  its  citizens. 

A  war,  therefore,  declared  by  Congress,  can  never  be  pre- 
sumed to  be  waged  for  the  purpose  of  conquest  or  the  acqui- 


FLEMING    V.    PAGE.  203 

sition  of  territory;  nor  does  the  law  declaring  the  war  imply 
an  authority  to  the  President  to  enlarge  the  limits  of  the  United 
States  by  subjugating  the  enemy's  country.  The  United  States, 
it  is  true,  may  extend  its  boundaries  by  conquest  or  treaty,  and 
may  demand  the  cession  of  territory  as  the  condition  of  peace, 
in  order  to  indemnify  its  citizens  for  the  injuries  they  have  suffered, 
or  to  reimburse  the  government  for  the  expenses  of  the  war. 
But  this  can  be  done  only  by  the  treaty-making  power  or  the 
legislative  authority,  and  is  not  a  part  of  the  power  conferred 
upon  the  President  by  the  declaration  of  war.  His  duty  and 
his  power  are  purely  military.  As  commander-in-chief,  he  is 
authorized  to  direct  the  movements  of  the  naval  and  military 
forces  placed  by  law  at  his  command,  and  to  employ  them  in  the 
manner  he  may  deem  most  effectual  to  harass  and  conquer  and 
subdue  the  enemy.  He  may  invade  the  hostile  country,  and 
subject  it  to  the  sovereignty  and  authority  of  the  United  States. 
But  his  conquests  do  not  enlarge  the  boundaries  of  this  Union, 
nor  extend  the  operation  of  our  institutions  and  laws  beyond  the 
limits  before  assigned  to  them  by  the  legislative  power. 

It  is  true,  that,  when  Tampico  had  been  captured,  and  the 
State  of  Tamaulipas  subjugated,  other  nations  were  bound  to 
regard  the  country,  while  our  possession  continued,  as  the  ter- 
ritory of  the  United  States,  and  to  respect  it  as  such.  For,  by 
the  laws  and  usages  of  nations,  conquest  is  a  valid  title,  while 
the  victor  maintains  the  exclusive  possession  of  the  conquered 
country.  The  citizens  of  no  other  nation,  therefore,  had  a 
right  to  enter  it  without  the  permission  of  the  American  authori- 
ties, nor  to  hold  intercourse  with  its  inhabitants,  nor  to  trade 
with  them.  As  regarded  all  other  nations,  it  was  a  part  of  the 
United  States,  and  belonged  to  them  as  exclusively  as  the  ter- 
ritory included  in  our  established  boundaries. 

But  yet  it  was  not  a  part  of  this  Union.  For  every  nation 
which  acquires  territory  by  treaty  or  conquest  holds  it  accord- 
ing to  its  own  institutions  and  laws.  And  the  relation  in  which 
the  port  of  Tampico  stood  to  the  United  States  while  it  was 
occupied  by  their  arms  did  not  depend  upon  the  laws  of  nations, 
but  upon  our  own  Constitution  and  acts  of  Congress.  The 
power  of  the  President  under  which  Tampico  and  the  State  of 
Tamaulipas  were  conquered  and  held  in  subjection  was  simply 
that  of  a  military  commander  prosecuting  a  war  waged  against 
a  public  enemy  by  the  authority  of  his  government.  And  the 
country  from  which  these  goods  were  imported  was  invaded 


204  DISTRICT    OF   COLUMBIA,    ETC. 

and  subdued,  and  occupied  as  the  territory  of  a  foreign  hostile 
nation,  as  a  portion  of  Mexico,  and  was  held  in  possession  in  order 
to  distress  and  harass  the  enemy.  While  it  was  occupied  by  our 
troops,  they  were  in  an  enemy's  country,  and  not  in  their  own; 
the  inhabitants  were  still  foreigners  and  enemies,  and  owed  to 
the  United  States  nothing  more  than  the  submission  and  obedi- 
ence, sometimes  called  temporary  allegiance,  which  is  due  from 
a  conquered  enemy,  when  he  surrenders  to  a  force  which  he  is 
unable  to  resist.  But  the  boundaries  of  the  United  States,  as 
they  existed  when  war  was  declared  against  Mexico,  were  not 
extended  by  the  conquest;  nor  could  they  be  regulated  by  the 
varying  incidents  of  war,  and  be  enlarged  or  diminished  as  the 
armies  on  either  side  advanced  or  retreated.  They  remained 
unchanged.  And  every  place  which  was  out  of  the  limits  of  the 
United  States,  as  previously  established  by  the  political  authori- 
ties of  the  government,  was  still  foreign;  nor  did  our  laws  extend 
over  it.  Tampico  was,  therefore,  a  foreign  port  when  this  ship- 
ment was  made. 

Again,  there  was  no  act  of  Congress  establishing  a  custom- 
house at  Tampico,  nor  authorizing  the  appointment  of  a  col- 
lector; and,  consequently,  there  was  no  officer  of  the  United 
States  authorized  by  law  to  grant  the  clearance  and  authenti- 
cate the  coasting  manifest  of  the  cargo,  in  the  manner  directed 
by  law,  where  the  voyage  is  from  one  port  of  the  United  States 
to  another.  The  person  who  acted  in  the  character  of  collector 
in  this  instance,  acted  as  such  under  the  authority  of  the  mili- 
tary commander,  and  in  obedience  to  his  orders;  and  the  duties 
he  exacted,  and  the  regulations  he  adopted,  were  not  those  pre- 
scribed by  law,  but  by  the  President  in  his  character  of  commander- 
in-chief.  The  custom-house  was  established  in  an  enemy's 
country,  as  one  of  the  weapons  of  war.  It  was  established,  not 
for  the  purpose  of  giving  to  the  people  of  Tamaulipas  the  benefits 
of  commerce  with  the  United  States,  or  with  other  countries,  but 
as  a  measure  of  hostility,  and  as  a  part  of  the  military  operations 
in  Mexico;  it  was  a  mode  of  exacting  contributions  from  the 
enemy  to  support  our  army,  and  intended  also  to  cripple  the 
resources  of  Mexico,  and  make  it  feel  the  evils  and  burdens  of 
the  war.  The  duties  required  to  be  paid  were  regulated  with 
this  view,  and  were  nothing  more  than  contributions  levied  upon 
the  enemy,  which  the  usages  of  war  justify  when  an  army  is 
operating  in  the  enemy's  country.  The  permit  and  coasting 
manifest  granted  by  an  officer  thus  appointed,  and  thus  controlled 


FLEMING    V.    PAGE.  205 

by  military  authority,  could  not  be  recognized  in  any  port  of  the 
United  States,  as  the  documents  required  by  the  act  of  Congress 
when  the  vessel  is  engaged  in  the  coasting  trade,  nor  could  they 
exempt  the  cargo  from  the  payment  of  duties. 

This  construction  of  the  revenue  laws  has  been  uniformly 
given  by  the  administrative  department  of  the  government  in 
every  case  that  has  come  before  it.  And  it  has,  indeed,  been 
given  in  cases  where  there  appears  to  have  been  stronger  ground 
for  regarding  the  place  of  shipment  as  a  domestic  port.  For 
after  Florida  had  been  ceded  to  the  United  States,  and  the  forces 
of  the  United  States  had  taken  possession  of  Pensacola,  it  was 
decided  by  the  Treasury  Department,  that  goods  imported  from 
Pensacola  before  an  act  of  Congress  was  passed  erecting  it  into 
a  collection  district,  and  authorizing  the  appointment  of  a  col- 
lector, were  liable  to  duty.  That  is,  that  although  Florida  had, 
by  cession,  actually  become  a  part  of  the  United  Statues,  and  was 
in  our  possession,  yet,  under  our  revenue  laws  its  ports  must  be 
regarded  as  foreign  until  they  were  established  as  domestic,  by 
act  of  Congress;  and  it  appears  that  this  decision  was  sanctioned 
at  the  time  by  the  Attorney-General  of  the  United  States,  the 
law  officer  of  the  govermnent.  And  although  not  so  directly 
applicable  to  the  case  before  us,  yet  the  decisions  of  the  Treasury 
Department  in  relation  to  Ameha  Island,  and  certain  ports  in 
Louisiana,  after  that  province,  had  been  ceded  to  the  United 
States,  were  both  made  upon  the  same  grounds.  And  in  the 
latter  case,  after  a  custom-house  had  been  established  by  law 
at  New  Orleans,  the  collector  at  that  place  was  instructed  to 
regard  as  foreign  ports  Baton  Rouge  and  other  settlements  still 
in  the  possession  of  Spain,  whether  on  the  Mississippi,  Iberville, 
or  the  sea-coast.  The  Department  in  no  instance  that  we  are 
aware  of,  since  the  establishment  of  the  government,  has  ever 
recognized  a  place  in  a  newly  acquired  country  as  a  domestic 
port,  from  which  the  coasting  trade  might  be  carried  on,  unless 
it  had  been  previously  made  so  by  act  of  Congress. 

The  principle  thus  adopted  and  acted  upon  by  the  executive 
department  of  the  government  has  been  sanctioned  by  the  de- 
cisions in  this  court  and  the  Circuit  Courts  whenever  the  ques- 
tion came  before  them.  We  do  not  propose  to  comment  upon 
the  different  cases  cited  in  the  argument.  It  is  sufficient  to  say, 
that  there  is  no  discrepancy  between  them.  And  all  of  them, 
so  far  as  they  apply,  maintain,  that  under  our  revenue  laws 
every  port  is  regarded  as  a  foreign  one,  unless  the  custom-house 


206  DISTRICT   OF    COLUMBIA,    ETC. 

from  which  the  vessel  clears  is  within  a  collection  district  estab- 
lished by  act  of  Congress,  and  the  officers  granting  the  clearance 
exercise  their  functions  under  the  authority  and  control  of  the 
laws  of  the  United  States. 

In  the  view  we  have  taken  of  this  question,  it  is  unnecessary 
to  notice  particularly  the  passages  from  eminent  writers  on  the 
laws  of  nations  which  were  brought  forward  in  the  argument. 
They  speak  altogether  pf  the  rights  which  a  sovereign  acquires, 
and  the  powers  he  may  exercise  in  a  conquered  country,  and 
they  do  not  bear  upon  the  question  we  are  considering.  For 
in  this  country  the  sovereignty  of  the  United  States  resides  in 
the  people  of  the  several  States,  and  they  act  through  their 
representatives,  according  to  the  delegation  and  distribution 
of  powers  contained  in  the  Constitution.  And  the  constituted 
authorities  to  whom  the  power  of  making  war  and  concluding 
peace  is  confided,  and  of  determining  whether  a  conquered  country 
shall  be  permanently  retained  or  not,  neither  claimed  nor  exer- 
cised any  rights  or  powers  in  relation  to  the  territory  in  question 
but  the  rights  of  war.  After  it  was  subdued,  it  was  uniformly 
treated  as  an  enemy's  country,  and  restored  to  the  possession 
of  the  Mexican  authorities  when  peace  was  concluded.  And 
certainly  its  subjugation  did  not  compel  the  United  States,  while 
they  held  it,  to  regard  it  as  a  part  of  their  dominions,  nor 
to  give  to  it  any  form  of  civil  government,  nor  to  extend  to  it 
our  laws. 

Neither  is  it  necessary  to  examine  the  English  decisions  which 
have  been  referred  to  by  counsel.  It  is  true  that  most  of  the 
States  have  adopted  the  principles  of  English  jurisprudence, 
so  far  as  it  concerns  private  and  individual  rights.  And  when 
such  rights  are  in  question,  we  habitually  refer  to  the  English 
decisions,  not  only  with  respect,  but  in  many  cases  as  authorita- 
tive. But  in  the  distribution  of  political  power  between  the 
great  departments  of  government,  there  is  such  a  wide  difference 
between  the  power  conferred  on  the  President  of  the  United 
States,  and  the  authority  and  sovereignty  which  belong  to  the 
English  crown,  that  it  would  be  altogether  unsafe  to  reason  from 
any  supposed  resemblance  between  them,  either  as.  regards  con- 
quest in  war,  or  any  other  subject  where  the  rights  and  powers  of 
the  executive  arm  of  the  government  are  brought  into  question. 
Our  own  Constitution  and  form  of  government  must  be  our  only 
guide.     And  we  are  entirely  satisfied  that,  under  the  Constitution 


NATIONAL   BANK   V.    COUNTY   OF   YANKTON.  207 

and  laws  of  the  United  States,  Tampico  was  a  foreign  port,  within 
the  meaning  of  the  act  of  1846,  when  these  goods  were  shipped, 
and  that  the  cargoes  were  liable  to  the  duty  charged  upon  them. 
And  we  shall  certify  accordingly  to  the  Circuit  Court. 
McLean,  J.,  dissented. 


NATIONAL  BANK  v.  COUNTY  OF  YANKTON. 
Supreme  Court  of  the  United  States.     1879. 

[101  United  States,  129.]  i 

Error  to  the  Supreme  Court  of  Dakota  Territory. 

The  First  National  Bank  of  Brunswick,  Maine,  brought  action 
in  the  District  Court  of  the  Territory  to  recover  interest  on  bonds 
issued  by  the  defendant  county.  The  defense  was  that  there 
was  no  law  authorizing  the  bonds.  By  acts  of  Congress  it  had 
been  provided  that  no  one  session  of  the  legislative  assembly  of 
Dakota  should  exceed  forty  days  and  that  the  sessions  of  all 
territorial  legislative  assemblies  should  be  biennial.  The  members 
of  the  legislative  assembly  met  on  December  5,  1870,  and  con- 
tinued in  session  on  all  days,  except  Sundays,  until  adjournment 
on  January  13,  1871.  The  journal  called  the  day  of  adjourn- 
ment the  fortieth  day  of  the  session,  although  it  was  only  the 
thirty-fifth  day  of  transacting  business.  At  the  call  of  the  acting 
governor  the  legislature  again  assembled  on  April  18,  1871,  and 
passed  an  act  to  enable  counties  to  vote  aid  to  any  railroad. 
On  September  2,  1871,  the  electors  of  the  defendant  county 
voted  under  this  act  to  give  to  the  Dakota  Southern  Railroad 
Company,  $200,000  in  bonds  of  the  county.  On  May  27,  1872, 
an  act  of  Congress  went  into  effect,  containing  these  provisions: 
"  That  the  act  passed  by  the  legislative  assembly  .  .  .  be  .  .  . 
disapproved  and  annulled,  except  in  so  far  as  herein  otherwise 
provided.  But  the  passage  of  this  act  shall  not  invahdate  .  .  . 
the  organization  of  the  .  .  .  Dakota  Southern  Railroad  ...  or 
any  vote  that  has  been  or  may  be  given  by  the  counties  of  Union, 
Clay,  Yankton,  and  Bon  Homme,  .  .  .  granting  aid  to  said  rail- 

^  A  statement  has  been  based  upon  facts  given  in  the  opinion.  —  Ed. 


208  DISTRICT   OF   COLUMBIA,    ETC. 

road,  ...  or  anything  authorized  by  and  that  may  have  been 
done  in  pursuance  of  .  .  .  the  aforesaid  act  .  .  .  towards  the  con- 
struction ...  of  said  railroad  .  .  . ;  and  the  provisions  of  the  act 
...  so  far  as  the  same  authorize  .  .  .  any  vote  of  aid  ...  to  said 
company  .  .  .  are  hereby  declared  to  be  and  remain  in  full  force, 
but  no  further."  After  the  passage  of  this  last  act,  the  bonds 
voted  were  delivered  to  the  railroad  company  in  accordance  with 
the  conditions  prescribed. 

In  the  District  Court  of  the  Territory  judgment  was  rendered 
for  the  defendant.  This  judgment  was  affirmed  by  the  Supreme 
Court  of  the  Territory.  Thereupon  the  bank  brought  the  case 
to  the  Supreme  Court  of  the  United  States  by  writ  of  error. 

S.  W.  Packard  and  James  Grant,  for  the  plaintiff  in  error;  and 
M.  H.  Carpenter  and  James  Coleman,  contra. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

We  do  not  consider  it  necessary  to  decide  whether  the  gov- 
ernor of  Dakota  had  authority  to  call  an  extra  session  of  the 
legislative  assembly,  nor  whether  a  law  passed  at  such  a  session 
or  after  the  limited  term  of  forty  days  had  expired  would  be 
valid,  because,  as  we  think,  the  act  of  May  27,  1872,  is  equiva- 
lent to  a  direct  grant  of  power  by  Congress  to  the  county  to 
issue  the  bonds  in  dispute.  It  is  certainly  now  too  late  to  doubt 
the  power  of  Congress  to  govern  the  Territories.  There  have 
been  some  differences  of  opinion  as  to  the  particular  clause  of 
the  Constitution  from  which  the  power  is  derived,  but  that  it 
exists  has  always  been  conceded.  The  act  to  adapt  the  ordinance 
to  provide  for  the  government  of  the  Territory  northwest  of  the 
river  Ohio  to  the  requirements  of  the  Constitution  (1  Stat.  50) 
is  chap.  8  of  the  first  session  of  the  first  Congress,  and  the  ordi- 
nance itself  was  in  force  under  the  confederation  when  the  Con- 
stitution went  into  effect.  All  territory  within  the  jurisdiction 
of  the  United  States  not  included  in  any  State  must  necessarily 
be  governed  by  or  under  the  authority  of  Congress.  The  Terri- 
tories are  but  political  sub-divisions  of  the  outlying  dominion  of 
the  United  States.  Their  relation  to  the  general  government  is 
much  the  same  as  that  which  counties  bear  to  the  respective 
States,  and  Congress  may  legislate  for  them  as  a  State  does  for 
its  municipal  organizations.  The  organic  law  of  a  Territory 
takes  the  place  of  a  constitution  as  the  fundamental  law  of  the 
local  government.  It  is  obligatory  on  and  binds  the  territorial 
authorities;  but  Congress  is  supreme,  and  for  the  purposes  of 
this  department  of  its  governmental  authority  has  all  the  powers 


NATIONAL   BANK   V.    COUNTY   OF   YANKTON.  209 

of  the  people  of  the  United  States,  except  such  as  have  been 
expressly  or  by  implication  reserved  in  the  prohibitions  of  the 
Constitution. 

In  the  organic  act  of  Dakota  there  was  not  an  express  reser- 
vation of  power  in  Congress  to  amend  the  acts  of  the  territorial 
legislature,  nor  was  it  necessary.  Such  a  power  is  an  incident 
of  sovereignty,  and  continues  until  granted  away.  Congress 
may  not  only  abrogate  laws  of  the  territorial  legislatures,  but  it 
may  itself  legislate  directly  for  the  local  government.  It  may 
make  a  void  act  of  the  territorial  legislature  valid,  and  a  valid 
act  void.  In  other  words,  it  has  full  and  complete  legislative 
authority  over  the  people  of  the  Territories  and  all  the  depart- 
ments of  the  territorial  governments.  It  may  do  for  the  Terri- 
tories what  the  people,  under  the  Constitution  of  the  United  States, 
may  do  for  the  States. 

Turning,  then,  to  the  particular  act  of  Congress  now  under 
consideration,  we  find  that  the  attention  of  that  body  was  in 
some  way  brought  to  the  fact  that  the  legislative  assembly  of 
Dakota  had,  on  the  21st  of  April,  1871,  passed  an  act  to  enable 
organized  counties  and  townships  to  vote  aid  to  railroads.  In 
addition  to  this,  it  was  known  that  the  Dakota  Southern  Rail- 
road Company  had  been  organized  as  a  corporation  under  cer- 
tain acts  of  the  territorial  legislative  assembly,  and  that  votes 
had  been  taken  under  the  aid  act  in  some  of  the  counties  and 
townships  granting  aid  to  or  authorizing  subscriptions  of  stock 
in  this  corporation.  It  is  clear  that  Congress  disapproved  the 
policy  of  the  aid  act,  and  was  unwilling  to  have  it  go  into  gen- 
eral operation;  but  to  the  extent  it  could  be  made  available 
for  the  construction  and  completion  of  the  main  stem  of  the 
Dakota  Southern  Railroad  the  contrary  is  distinctly  manifested. 
The  act  as  a  whole  was  "  disapproved  and  annulled,"  but  in 
substance  re-enacted  by  Congress  "  for  the  purpose  of  validating 
any  vote  of  aid  or  subscription  "  to  that  company,  but  "  for  no 
other  purpose  whatever."  A  careful  examination  of  the  statute 
leaves  no  doubt  in  our  minds  on  this  subject.  To  make  it  sure 
that  the  organization  of  the  company  was  complete,  the  "  Da- 
kota Southern  Railroad  Company,  as  organized  under  and  in 
conformity  to  the  acts  of  the  legislative  assembly  of  said  Terri- 
tory," was  "  recognized  and  declared  to  be  a  legal  and  valid 
corporation."  It  is  then  in  terms  enacted  that  the  provisions 
of  the  aid  act,  "  so  far  as  the  same  authorize,  and  for  the  pur- 
pose of  validating  any  vote  of  aid  and  subscriptions  to  said 


210  DISTRICT   OF   COLUMBIA,    ETC. 

company,  for  the  construction,  completion,  and  equipment  of 
the  main  stem  of  said  railroad,  .  .  .  are  hereby  declared  to 
be  and  remain  in  full  force."  And  again:  "that  said  Dakota 
Southern  Railroad  Company  shall  issue  to  the  respective  coun- 
ties and  townships  voting  aid  to  said  railroad,  paid-up  certifi- 
cates of  stock  in  the  same  in  amounts  equal  to  the  sums  voted 
by  the  respective  counties  and  townships."  In  the  light  of 
these  distinct  and  positive  declarations  and  enactments  of  Con- 
gress, it  is  impossible  to  bring  our  minds  to  any  other  conclu- 
sion than  that,  when  the  bonds  now  in  controversy  were  put 
out,  there  existed  full  and  complete  legislative  authority  to 
bind  the  people  of  the  county  for  their  payment.  No  com- 
plaint is  made  of  any  irregularity  in  the  proceedings  under  the 
law.  The  question  in  the  case  is  one  of  power  only.  As  we 
think,  the  vote  of  the  people  of  the  county  was  "  validated  " 
by  Congress,  and  express  authority  given  to  issue  the  bonds  for 
the  purposes  originally  intended.  The  only  change  which  Con- 
gress saw  fit  to  make  was  to  require  the  company  to  give  stock 
in  return  for  the  donation  as  voted. 

The  judgment  of  the  Supreme  Court  of  the  Territory  will  be 
reversed,  and  the  cause  remanded  with  instructions  to  reverse 
the  judgment  of  the  District  Court  and  direct  a  judgment  for  the 
plaintiff  on  the  facts  found  for  such  amount  as  shall  appear  to 
be  due  on  the  coupons  sued  for;  and  it  is  So  ordered.^ 


CALLAN  V,  WILSON. 

Supreme  Court  of  the  United  States.     1888. 

[127  United  States,  540.] 

Appeal  from  the  Supreme  Court  of  the  District  of  Colum- 
bia. .  .  . 

This  was  an  appeal  from  a  judgment  refusing,  upon  writ  of 
habeas  corpus,  to  discharge  the  appellant  from  the  custody  of 
the  appellee  as  Marshal  of  the  District  of  Columbia.  It  ap- 
pears that  by  an  information  filed  by  the  United  States  in  the 

1  See  Mormon  Church  v.  United  States,  136  U.  S.  1  (1890).  —  Ed. 


CALLAN   V.   WILSON.  211 

Police  Court  of  the  District,  the  petitioner,  with  others,  was 
charged  with  the  crime  of  conspiracy,  and  having  been  found 
guilty  by  the  court  was  sentenced  to  pay  a  fine  of  twenty-five 
dollars,  and  upon  default  in  its  payment  to  suffer  imprison- 
ment in  jail  for  the  period  of  thirty  days.  He  perfected  an  appeal 
to  the  Supreme  Court  of  the  District,  but  having  subsequently 
withdrawn  it,  and  having  refused  to  pay  the  fine  imposed  upon 
him,  he  was  committed  to  the  custody  of  the  Marshal,  to  the 
end  that  the  sentence  might  be  carried  into  effect. 

The  contention  of  the  petitioner  was  that  he  is  restrained  of 
his  liberty  in  violation  of  the  Constitution.  .  .  . 

The  defendants  .  .  .  united  in  requesting  a  trial  by  jury. 
That  request  was  denied,  and  a  trial  was  had  before  the  court, 
without  the  intervention  of  a  jury.  .  .  . 

Ralston,  for  appellant;  Moore  with  him  on  the  brief;  and 
Maury,  Assistant  Attorney  General,  for  appellee. 
Harlan,  J.,  .  .  .  delivered  the  opinion  of  the  court. 
It  is  contended  by  the  appellant  that  the  Constitution  of  the 
United  States  secured  to  him  the  right  to  be  tried  by  a  jury, 
and,  that  right  having  been  denied,  the  police  court  was  with- 
out jurisdiction  to  impose  a  fine  upon  him,  or  to  order  him  to 
be  imprisoned  until  such  fine  was  paid.  This  precise  question 
is  now,  for  the  first  time,  presented  for  determination  by  this 
court.  If  the  appellant's  position  be  sustained,  it  will  follow 
that  the  statute  (Rev.  Stat.  Dist.  Col.,  §  1064),  dispensing  with 
a  petit  jury,  in  prosecutions  by  information  in  the  police  court, 
is  inapplicable  to  cases  like  the  present  one. 

The  third  article  of  the  Constitution  provides  that  "  the  trial 
of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury, 
and  such  trial  shall  be  held  in  the  State  where  the  said  crimes 
shall  have  been  committed;  but  when  not  committed  within 
any  State,  the  trial  shall  be  at  such  place  or  places  as  the  Con- 
gress may  by  law  have  directed."  The  Fifth  Amendment  pro- 
vides that  no  person  shall  "  be  deprived  of  life,  fiberty,  or  property, 
without  due  process  of  law,"  By  the  Sixth  Amendment  it  is 
declared  that  "  in  all  criminal  prosecutions  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  ascertained 
by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accu- 
sation; to  be  confronted  with  the  witnesses  against  him;  to  have 


212  DISTRICT   OF    COLUMBIA,    ETC. 

compulsory  process  for  obtaining  witnesses  in  his  favor,  and  to 
have  the  assistance  of  counsel  for  his  defence." 

The  contention  of  the  appellant  is,  that  the  offence  with  which 
he  is  charged  is  a  "  crime  "  within  the  meaning  of  the  third  article 
of  the  Constitution,  and  that  he  was  entitled  to  be  tried  by  a 
jury;  that  his  trial  by  the  police  court,  without  a  jury,  was  not 
"  due  process  of  law  "  within  the  meaning  of  the  Fifth  Amend- 
ment; and  that,  in  any  event,  the  prosecution  against  him  was  a 
"  criminal  prosecution,"  in  which  he  was  entitled,  by  the  Sixth 
Amendment,  tq  a  speedy  and  public  trial  by  an  impartial  jury. 

The  contention  of  the  government  is,  that  the  Constitution 
does  not  require  that  the  right  of  trial  by  jury  shall  be  secured 
to  the  people  of  the  District  of  Columbia;  that  the  original 
provision,  that  when  a  crime  was  not  committed  within  any 
State  "  the  trial  shall  be  at  such  place  or  places  as  the  Con- 
gress may  by  law  have  directed,"  had,  probably,  reference  only 
to  offences  committed  on  the  high  seas;  that,  in  adopting  the 
Sixth  Amendment,  the  people  of  the  States  were  solicitous  about 
trial  by  jury  in  the  States  and  nowhere  else,  leaving  it  entirely 
to  Congress  to  declare  in  what  way  persons  should  be  tried  who 
might  be  accused  of  crime  on  the  high  seas,  and  in  the  District 
of  Columbia  and  in  places  to  be  thereafter  ceded  for  the  pur- 
poses, respectively,  of  a  seat  of  government,  forts,  magazines, 
arsenals,  and  dock-yards;  and,  consequently,  that  that  Amend- 
ment should  be  deemed  to  have  superseded  so  much  of  the  third 
article  of  the  Constitution  as  relates  to  the  trial  of  crimes  by  a 
jury. 

Upon  a  careful  examination  of  this  position  we  are  of  opinion 
that  "it  cannot  be  sustained  without  violence  to  the  letter  and 
spirit  of  the  Constitution. 

The  third  article  of  the  Constitution  provides  for  a  jury  in 
the  trial  of  "  all  crimes,  except  in  cases  of  impeachment,"  The 
word  "  crime,"  in  its  more  extended  sense,  comprehends  every 
violation  of  public  law;  in  a  limited  sense,  it  embraces  offences 
of  a  serious  or  atrocious  character.  In  our  opinion,  the  provision 
Is  to  be  interpreted  in  the  light  of  the  principles  which,  at  common 
law,  determined  whether  the  accused,  in  a  given  class  of  cases, 
was  entitled  to  be  tried  by  a  jury.  It  is  not  to  be  construed  as 
relating  only  to  felonies,  or  offences  punishable  by  confinement 
in  the  penitentiary.  It  embraces  as  well  some  classes  of  misde- 
meanors, the  punishment  of  which  involves  or  may  involve  the 
deprivation  of  the  liberty  of  the  citizen.      It  would  be  a  narrow 


CALLAN    V.    WILSON.  213 

construction  of  the  Constitution  to  hold  that  no  prosecution  for 
a  misdemeanor  is  a  prosecution  for  a  "  crime  "  within  the  meaning 
of  the  third  article,  or  a  "  criminal  prosecution "  within  the 
meaning  of  the  Sixth  Amendment.  And  we  do  not  think  that 
the  amendment  was  intended  to  supplant  that  part  of  the  third 
article  which  relates  to  trial  by  jury.  There  is  no  necessary  con- 
flict between  them.  Mr.  Justice  Story  says  that  the  amendment, 
"  in  declaring  that  the  accused  shall  enjoy  the  right  to  a  speedy 
and  pubhc  trial  by  an  impartial  jury  of  the  State  or  district 
wherein  the  crime  shall  have  been  committed  (which  district  shall 
be  previously  ascertained  by  law),  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation,  and  to  be  confronted  with 
the  witnesses  against  him,  does  but  follow  out  the  established 
course  of  the  common  law  in  all  trials  for  crimes."  Story  on 
the  Constitution,  §  1791.  And  as  the  guarantee  of  a  trial  by 
jury,  in  the  third  article,  implied  a  trial  in  that  mode  and  accord- 
ing to  the  settled  rules  of  the  common  law,  the  enumeration,  in 
the  Sixth  Amendment,  of  the  rights  of  the  accused  in  criminal 
prosecutions,  is  to  be  taken  as  a  declaration  of  what  those  rules 
were,  and  is  to  be  referred  to  the  anxiety  of  the  people  of  the 
States  to  have  in  the  supreme  law  of  the  land,  and  so  far  as  the 
agencies  of  the  General  Government  were  concerned,  a  full  and 
distinct  recognition  of  those  rules,  as  involving  the  fundamental 
rights  of  life,  liberty,  and  property.  This  recognition  was  de- 
manded and  secured  for  the  benefit  of  all  the  people  of  the  United 
States,  as  well  those  permanently  or  temporarily  residing  in 
the  District  of  Columbia,  as  those  residing  or  being  in  the  several 
States.  There  is  nothing  in  the  history  of  the  Constitution  or  of 
the  original  amendments  to  justify  the  assertion  that  the  people 
of  this  District  may  be  lawfully  deprived  of  the  benefit  of  any 
of  the  constitutional  guarantees  of  life,  liberty,  and  property  — 
especially  of  the  privilege  of  trial  by  jury  in  criminal  cases.  In 
the  Draft  of  a  Constitution  reported  by  the  Committee  of  Five 
on  the  6th  of  August,  1787,  in  the  convention  which  framed  the 
Constitution,  the  4th  section  of  article  XI  read  that  "  the  trial 
of  all  criminal  offences  (except  in  cases  of  impeachment)  shall 
be  in  the  States  where  they  shall  be  committed;  and  shall  be 
by  jury."  1  Elliott's  Deb.,  2d  ed.,  229.  But  that  article  was, 
by  unanimous  vote,  amended  so  as  to  read:  "The  trial  of  all 
crimes  (except  in  cases  of  impeachment)  shall  be  by  jury;  and 
such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall 
have  been  committed;  but  when  not  committed  within  any  State, 


214  DISTRICT   OF   COLUMBIA,    ETC. 

then  the  trial  shall  be  at  such  place  or  places  as  the  legislature 
may  direct."  Id.  270.  The  object  of  thus  amending  the  section, 
Mr.  Madison  says,  was  "  to  provide  for  trial  by  jury  of  offences 
committed  out  of  any  State."  3  Madison  Papers,  144.  In 
Reynolds  v.  United  States,  98  U.  S.  145,  154,  it  was  taken  for 
granted  that  the  Sixth  Amendment  of  the  Constitution  secured 
to  the  people  of  the  Territories  the  right  of  trial  by  jury  in  criminal 
prosecutions;  and  it  had  been  previously  held  in  Webster  v. 
Reid,  11  How.  437,  460,  that  the  Seventh  Amendment  secured 
to  them  a  like  right  in  civil  actions  at  common  law.  We  can- 
not think  that  the  people  of  this  District  have,  in  that  regard, 
less  rights  than  those  accorded  to  the  people  of  the  Territories 
of  the  United  States.  .  .  . 

Conceding  that  there  is  a  class  of  petty  or  minor  offences,  not 
usually  embraced  in  public  criminal  statutes,  and  not  of  the  class 
or  grade  triable  at  common  law  by  a  jury,  and  which,  if  com- 
mitted in  this  District,  may,  under  the  authority  of  Congress, 
be  tried  by  the  court  and  without  a  jury,  we  are  of  opinion  that 
the  offence  with  which  the  appellant  is  charged  does  not  belong 
to  that  class.  .  .  . 

When,  therefore,  the  appellant  was  brought  before  the  Supreme 
Court  of  the  District,  and  the  fact  was  disclosed  that  he  had  been 
adjudged  guilty  of  the  crime  of  conspiracy  charged  in  the  informa- 
tion in  this  case,  without  ever  having  been  tried  by  a  jury,  he 
should  have  been  restored  to  his  liberty. 

For  the  reasons  stated, 

The  judgment  is  reversed,  and  the  cause  remanded  with  direc- 
tions to  discharge  the  appellant  from  custody.^ 

1  See  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1  (1899).  —  Ed. 


GEOFROY   V.    RIGGS.  215 

GEOFROY  V.   RIGGS. 

Supreme  Court  of  the  United  States.     1890. 

[133  United  Stales,  258.]  i 

Appeal  from  the  Supreme  Court  of  the  District  of  Columbia. 

In  partition  proceedings  praying  the  sale  of  certain  land  in 
the  District  of  Columbia,  the  bill  of  the  complainants,  citizens 
and  residents  of  France,  set  out  that  their  interest  was  derived 
by  inheritance  from  a  former  owner  who  was  a  citizen  of  the 
United  States  and  a  resident  of  the  District  of  Columbia,  and 
who  died  in  1888.  The  defendants  demurred.  The  Supreme 
Court  of  the  District  of  Columbia  sustained  the  demurrer  and 
dismissed  the  bill.     Therefore  this  appeal  was  taken. 

J.  H.  Ashton,  for  appellants;  and  John  Selden,  contra. 

Field,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  question  is :  can  citizens  of  France  take  land  in  the  District 
of  Columbia  by  descent  from  citizens  of  the  United  States  ? 

The  complainants  contend  that  they  inherit  an  estate  in  the 
property  described,  by  force  of  the  stipulation  of  article  7  of 
the  convention  between  the  United  States  and  France,  concluded 
February  23,  1853,  and  the  provisions  of  the  act  of  Congress  of 
March  3,  1887,  to  restrict  the  ownership  of  real  estate  in  the 
Territories  to  American  citizens.  Before  considering  the  effect 
of  this  article  and  of  the  act  of  1887,  a  brief  reference  will  be  had 
to  the  laws  of  Maryland  in  force  on  the  27th  of  February,  1801, 
which  were  on  that  day  declared  by  act  of  Congress  to  be  in  force 
in  the  District  of  Columbia.  The  language  of  the  act  is  "  that 
the  laws  of  the  State  of  Maryland  as  they  now  exist  shall  be  and 
continue  in  force  in  that  part  of  the  said  District  which  was  ceded 
by  that  State  to  the  United  States,  and  by  them  accepted." 
2  Stat.  103,  c.  15,  §  1.  .  .  . 

The  common  law,  unmodified  by  statute  or  treaty,  would  have 
excluded  aliens  from  inheriting  lands  in  the  United  States  from 
a  citizen  thereof.  Its  doctrine  is  that  aliens  have  no  inheri- 
table blood  through  which  a  title  can  be  transferred  by  opera- 
tion of  law.  The  act  of  Maryland  of  1780  modified  that  law 
so  far  as  to  allow  a  subject  of  France  who  had  settled  in  that 
State,  and  given  assurances  of  allegiance  and  attachment  to  it 
as  required  of  citizens,  to  devise  to  French  subjects,  who  for 
that  purpose  were  to  be  deemed  citizens  of  the  State.      Act 

^  The  statement  has  not  been  reprinted.  —  Ed. 


216  DISTRICT   OF   COLUMBIA,    ETC. 

of  March,  1780,  c.  8,  §  5,  1  Dorsey's  Laws  of  Maryland,  158. 
It  also  provided  that  if  the  decedent  died  intestate  his  natural 
kindred,  whether  residing  in  France  or  elsewhere,  should  in- 
herit his  real  estate  in  like  manner  as  if  such  decedent  and  his 
kindred  were  citizens  of  the  United  States.  It  had  no  bearing, 
however,  upon  the  inheritance  of  a  subject  of  France,  except 
from  a  Frenchman  domiciled  in  the  State.  The  act  of  Maryland 
of  December  19,  1791,  which  provided  in  its  sixth  section  that 
any  foreigner  might,  by  deed  or  will  thereafter  made,  take  and 
hold  lands  within  the  State  in  the  same  manner  as  if  he  were  a 
citizen  thereof,  and  that  the  lands  might  be  conveyed  by  him, 
and  transmitted  to  and  inherited  by  his  heirs  and  relations  as  if 
he  and  they  were  citizens  of  the  State,  did  not  do  away  with  the 
disability  of  foreigners  to  take  real  property  within  that  State 
by  inheritance  from  a  citizen  of  the  United  States.  It  was  so 
held  in  effect  in  Spratt  v.  Spratt,  1  Pet.  343;  s.  c.  4  Pet.  393. 

On  the  30th  of  September,  1800,  a  convention  of  peace,  com- 
merce and  navigation  was  concluded  between  France  and  the 
United  States,  the  7th  article  of  which  provided  that  "  the  citi- 
zens and  inhabitants  of  the  United  States  shall  be  at  liberty 
to  dispose  by  testament,  donation  or  otherwise,  of  their  goods, 
movable  and  immovable,  holden  in  the  territory  of  the  French 
Republic  in  Europe,  and  the  citizens  of  the  French  Republic  shall 
have  the  same  liberty  with  regard  to  goods  movable  and  im- 
movable, holden  in  the  territory  of  the  United  States,  in  favor  of 
such  persons  as  they  shall  think  proper.  The  citizens  and  in- 
habitants of  either  of  the  two  countries,  who  shall  be  heirs  of 
goods,  movable  or  immovable,  in  the  other,  shall  be  able  to  suc- 
ceed -ab  intestato,  without  being  obliged  to  obtain  letters  of 
naturalization,  and  without  having  the  effect  of  this  provision 
contested  or  impeded  under  any  pretext  whatever."     8  Stat.  182. 

This  article,  by  its  terms,  suspended,  during  the  existence  of 
the  treaty,  the  provisions  of  the  common  law  of  Maryland  and 
of  the  statutes  of  that  State  of  1780  and  of  1791,  so  far  as  they 
prevented  citizens  of  France  from  taking  by  inheritance  from 
citizens  of  the  United  States,  property,  real  or  personal,  situated 
therein. 

That  the  treaty  power  of  the  United  States  extends  to  all 
proper  subjects  of  negotiation  between  our  government  and 
the  governments  of  other  nations,  is  clear.  It  is  also  clear  that 
the  protection  which  should  be  afforded  to  the  citizens  of  one 
country  owning  property  in  another,  and  the  manner  in  which 


GEOFROY   V.   RIGGS.  217 

that  property  may  be  transferred,  devised  or  inherited  are  fitting 
subjects  for  such  negotiation  and  of  regulation  by  mutual  stipula- 
tions between  the  two  countries.  As  commercial  intercourse 
increases  between  different  countries  the  residence  of  citizens  of 
one  country  within  the  territory  of  the  other  naturally  follows 
and  the  removal  of  their  disability  from  alienage  to  hold,  transfer 
and  inherit  property  in  such  cases  tends  to  promote  amicable 
relations.  Such  removal  has  been  within  the  present  century 
the  frequent  subject  of  treaty  arrangement.  The  treaty  power, 
as  expressed  in  the  Constitution,  is  in  terms  unlimited  except  by 
those  restraints  which  are  found  in  that  instrument  against  the 
action  of  the  government  or  of  its  departments,  and  those  arising 
from  the  nature  of  the  government  itself  and  of  that  of  the  States. 
It  would  not  be  contended  that  it  extends  so  far  as  to  authorize 
what  the  Constitution  forbids,  or  a  change  in  the  character  of  the 
government  or  in  that  of  one  of  the  States,  or  a  cession  of  any 
portion  of  the  territory  of  the  latter,  without  its  consent.  Fort 
Leavenworth  Railroad  Co.  v.  Lowe,  114  U.  S.  525,  541.  But 
with  these  exceptions,  it  is  not  perceived  that  there  is  any  limit 
to  the  questions  which  can  be  adjusted  touching  any  matter 
which  is  properly  the  subject  of  negotiation  with  a  foreign  country. 
Ware  v.  Hylton,  3  Dall.  199;  Chirac  v.  Chirac,  2  Wheat.  259; 
Hauenstein  v.  Lynharn,  100  U.  S.  483;  8  Opinions  Attys.  Gen. 
417;  The  People  v.  Gerke,  5  California,  381. 

Article  7  of  the  convention  of  1800  was  in  force  when  the  act 
of  Congress  adopting  the  laws  of  Maryland,  February  27,  1801, 
was  passed.  That  law  adopted  and  continued  in  force  the  law 
of  Maryland  as  it  then  existed.  It  did  not  adopt  the  law  of 
Maryland  as  it  existed  previous  to  the  treaty;  for  that  would 
have  been  in  effect  to  repeal  the  treaty  so  far  as  the  District  of 
Columbia  was  affected.  In  adopting  it  as  it  then  existed,  it 
adopted  the  law  with  its  provisions  suspended  during  the  con- 
tinuance of  the  treaty  so  far  as  they  conflicted  with  it  —  in  other 
words  the  treaty,  being  part  of  the  supreme  law  of  the  land, 
controlled  the  statute  and  common  law  of  Maryland  whenever  it 
differed  from  them.  The  treaty  expired  by  its  own  limitation  in 
eight  years,  pursuant  to  an  article  inserted  by  the  Senate.  8  Stat. 
192.  During  its  continuance  citizens  of  France  could  take  property 
in  the  District  of  Columbia  by  inheritance  from  citizens  of  the 
United  States.  But  after  its  expiration  that  right  was  limited 
as  provided  by  the  statute  and  common  law  of  Maryland,  as 
adopted  by  Congress  on  the  27th  of  February,  1801,  until  the 


218  DISTRICT   OF   COLUMBIA,    ETC. 

convention  between  the  United  States  and  France  was  concluded, 
February  23,  1853.  The  7th  article  of  that  convention  is  as 
follows : 

''  In  all  the  States  of  the  Union,  whose  existing  laws  permit  it, 
so  long  and  to  the  same  extent  as  the  said  laws  shall  remain  in 
force.  Frenchmen  shall  enjoy  the  right  of  possessing  personal 
and  real  property  by  the  same  title  and  in  the  same  manner  as 
the  citizens  of  the  United  States.  They  shall  be  free  to  dispose 
of  it  as  they  may  please,  either  gratuitously  or  for  value  received, 
by  donation,  testament,  or  otherwise,  just  as  those  citizens  them- 
selves; and  in  no  case  shall  they  be  subjected  to  taxes  on  transfer, 
inheritance,  or  any  others  different  from  those  paid  by  the  latter, 
or  to  taxes  which  shall  not  be  equally  imposed. 

"As  to  the  States  of  the  Union,  by  whose  existing  laws  aliens 
are  not  permitted  to  hold  real  estate,  the  President  engages  to 
recommend  to  them  the  passage  of  such  laws  as  may  be  necessary 
for  the  purpose  of  conferring  this  right. 

"  In  like  manner,  but  with  the  reservation  of  the  ulterior 
right  of  establishing  reciprocity  in  regard  to  possession  and 
inheritance,  the  government  of  France  accords  to  the  citizens 
of  the  United  States  the  same  rights  within  its  territory  in  re- 
spect to  real  and  personal  property,  and  to  inheritance,  as  are 
enjoyed  there  by  its  own  citizens."      10  Stat.  996. 

This  article  is  not  happily  drawn.  It  leaves  in  doubt  what 
is  meant  by  "  States  of  the  Union."  Ordinarily  these  terms 
would  be  held  to  apply  to  those  political  communities  exercising 
various  attributes  of  sovereignty  which  compose  the  United 
States,  as  distinguished  from  the  organized  municipalities  known 
as  Territories  and  the  District  of  Columbia.  And  yet  separate 
communities,  with  an  independent  local  government,  are  often 
described  as  states,  though  the  extent  of  their  political  sover- 
eignty be  limited  by  relations  to  a  more  general  government  or 
to  other  countries.  Halleck  on  Int.  Law,  c.  3,  §§  5,  6,  7.  The 
term  is  used  in  general  jurisprudence  and  by  writers  on  public 
law  as  denoting  organized  political  societies  with  an  established 
government.  Within  this  definition  the  District  of  Columbia, 
under  the  govermnent  of  the  United  States,  is  as  much  a  State 
as  any  of  those  political  communities  which  compose  the  United 
States.  Were  there  no  other  territory  under  the  government  of 
the  United  States,  it  would  not  be  questioned  that  the  District 
of  Columbia  would  be  a  State  within  the  meaning  of  international 
law;  and  it  is  not  perceived  that  it  is  any  less  a  State  within  that 


GEOFROY   V.    RIGGS.  219 

meaning  because  other  States  and  other  territory  are  also  under 
the  same  government.  .  .  . 

Aside  from  the  question  in  which  of  these  significations  the 
terms  are  used  in  the  convention  of  1853,  we  think  the  construc- 
tion of  article  7  is  free  from  difficulty.  In  some  States  aliens  were 
permitted  to  hold  real  estate,  but  not  to  take  by  inheritance. 
To  this  right  to  hold  real  estate  in  some  States  reference  is  had 
by  the  words  "  permit  it  "  in  the  first  clause,  and  it  is  alluded 
to  in  the  second  clause  as  not  permitted  in  others.  This  will 
be  manifest  if  we  read  the  second  clause  before  the  first.  This 
construction,  as  well  observed  by  counsel,  gives  consistency  and 
harmony  to  all  the  provisions  of  the  article,  and  comports  with 
its  character  as  an  agreement  intended  to  confer  reciprocal  rights 
on  the  citizens  of  each  country  with  respect  to  property  held  by 
them  within  the  territory  of  the  other.  ...  As  we  read  the  article 
it  declares  that  in  all  the  States  of  the  Union  by  whose  laws  aliens 
are  permitted  to  hold  real  estate,  so  long  as  such  laws  remain 
in  force.  Frenchmen  shall  enjoy  the  right  of  possessing  personal 
and  real  property  by  the  same  title  and  in  the  same  manner  as 
citizens  of  the  United  States.  They  shall  be  free  to  dispose  of 
it  as  they  may  please  —  by  donation,  testament,  or  otherwise  — 
just  as  those  citizens  themselves.  But  as  to  the  States  by  whose 
existing  laws  aliens  are  not  permitted  to  hold  real  estate,  the 
treaty  engages  that  the  President  shall  recommend  to  them 
the  passage  of  such  laws  as  may  be  necessary  for  the  purpose 
of  conferring  that  right. 

In  determining  the  question  in  what  sense  the  terms  "  States 
of  the  Union  "  are  used,  it  is  to  be  borne  in  mind  that  the  laws 
of  the  District  and  of  some  of  the  Territories,  existing  at  the 
time  the  convention  was  concluded  in  1853,  allowed  aliens  to 
hold  real  estate.  If,  therefore,  these  terms  are  held  to  exclude 
those  political  communities,  our  government  is  placed  in  a  very 
inconsistent  position  —  stipulating  that  citizens  of  France  shall 
enjoy  the  right  of  holding,  disposing  of,  and  inheriting,  in  Hke 
manner  as  citizens  of  the  United  States,  property,  real  and  per- 
sonal, in  those  States  whose  laws  permit  aliens  to  hold  real  estate; 
that  is,  that  in  those  States  citizens  of  France,  in  holding,  dispos- 
ing of,  and  inheriting  property,  shall  be  free  from  disability  of 
alienage;  and,  in  order  that  they  may  in  like  manner  be  free  from 
such  disability  in  those  States  whose  existing  laws  do  not  permit 
aliens  to  hold  real  estate,  engaging  that  the  President  shall  recom- 
mend the  passage  of  laws  conferring  that  right;  while,  at  the  same 


220  DISTRICT   OF   COLUMBIA,    ETC. 

time,  refusing  to  citizens  of  France  holding  property  in  the  Dis- 
trict and  in  some  of  the  Territories,  where  the  power  of  the 
United  States  is  in  that  respect  unlimited,  a  like  release  from  the 
disabiUty  of  alienage,  thus  discriminating  against  them  in  favor 
of  citizens  of  France  holding  property  in  States  having  similar 
legislation.  No  plausible  motive  can  be  assigned  for  such  dis- 
crimination. A  right  which  the  government  of  the  United 
States  apparently  desires  that  citizens  of  France  should  enjoy 
in  all  the  States,  it  would  hardly  refuse  to  them  in  the  District 
embracing  its  capital,  or  in  any  of  its  own  territorial  dependen- 
cies. By  the  last  clause  of  the  article  the  government  of  France 
accords  to  the  citizens  of  the  United  States  the  same  rights  within 
its  territory  in  respect  to  real  and  personal  property  and  to  in- 
heritance as  are  enjoyed  there  by  its  own  citizens.  There  is  no 
limitation  as  to  the  territory  of  France  in  which  the  right  of 
inheritance  is  conceded.  And  it  declares  that  this  right  is  given 
in  hke  manner  as  the  right  is  given  by  the  government  of  the 
United  States  to  citizens  of  France.  To  ensure  reciprocity  in 
the  terms  of  the  treaty,  it  would  be  necessary  to  hold  that  by 
"  States  of  the  Union  "  is  meant  all  the  political  communities 
exercising  legislative  powers  in  the  country,  embracing  not  only 
those  political  communities  which  constitute  the  United  States, 
but  also  those  communities  which  constitute  the  political  bodies 
known  as  Territories  and  the  District  of  Columbia.  It  is  a 
general  principle  of  construction  with  respect  to  treaties  that 
they  shall  be  liberally  construed,  so  as  to  carry  out  the  apparent 
intention  of  the  parties  to  secure  equality  and  reciprocity  between 
them.  As  they  are  contracts  between  independent  nations, 
in  their  construction  words  are  to  be  taken  in  their  ordinary 
meaning,  as  understood  in  the  public  law  of  nations,  and  not  in 
any  artificial  or  special  sense  impressed  upon  them  by  local  law, 
unless  such  restricted  sense  is  clearly  intended.  And  it  has 
been  held  by  this  court  that  where  a  treaty  admits  of  two  con- 
structions, one  restrictive  of  rights  that  may  be  claimed  under 
it  and  the  other  favorable  to  them,  the  latter  is  to  be  preferred. 
Hauenstein  v.  Lynham,  100  U.  S.  483,  487.  The  stipulation  that 
the  government  of  France  in  like  manner  accords  to  the  citizens 
of  the  United  States  the  same  rights  within  its  territory  in  respect 
to  real  and  personal  property  and  inheritance  as  are  enjoyed 
there  by  its  own  citizens,  indicates  that  that  government  con- 
sidered that  similar  rights  were  extended  to  its  citizens  within 


GEOFROY   V.    RIGGS.  221 

the  territory  of  the  United  States,  whatever  the  designation 
given  to  their  different  pohtical  communities. 

We  are,  therefore,  of  opinion  that  this  is  the  meaning  of  the 
article  in  question  —  that  there  shall  be  reciprocity  in  respect 
to  the  acquisition  and  inheritance  of  property  in  one  country 
by  the  citizens  of  the  other,  that  is,  in  all  pohtical  communities 
in  the  United  States  where  legislation  permits  aliens  to  hold 
real  estate,  the  disability  of  Frenchmen  from  alienage  in  dis- 
posing and  inheriting  property,  real  and  personal,  is  removed, 
and  the  same  right,  of  disposition  and  inheritance  of  property, 
in  France,  is  accorded  to  citizens  of  the  United  States,  as  are 
there  enjoyed  by  its  own  citizens.  This  construction  finds  sup- 
port in  the  first  section  of  the  act  of  March  3d,  1887.  24  Stat. 
476,  c.  340.  That  section  declares  that  it  shall  be  unlawful  for 
any  person  or  persons  not  citizens  of  the  United  States,  or  who 
have  not  declared  their  intention  to  become  citizens,  to  there- 
after acquire,  hold  or  own  real  estate,  or  any  interest  therein, 
in  any  of  the  Territories  of  the  United  States  or  in  the  District 
of  Columbia,  except  such  as  may  be  acquired  by  inheritance  or 
in  good  faith  in  the  ordinary  course  of  justice  in  the  collection 
of  debts  previously  created.  There  is  here  a  plain  implication 
that  property  in  the  District  of  Columbia  and  in  the  Territories 
may  be  acquired  by  aliens  by  inheritance  under  existing  laws; 
and  no  property  could  be  acquired  by  them  in  the  District  by 
inheritance  except  by  virtue  of  the  law  of  Maryland  as  it  existed 
when  adopted  by  the  United  States  during  the  existence  of  the 
convention  of  1800  or  under  the  7th  article  of  the  convention 
of  1853.  Our  conclusion  is,  that  the  complainants  are  entitled 
to  take  by  inheritance  an  interest  in  the  real  property  in  the 
District  of  Columbia  of  which  their  uncle  died  seized.  The 
decree  of  the  court  below  will,  therefore,  be 

Reversed  and  the  cause  remanded,  with  direction  to  overrule  the 
demurrer  of  the  defendants;  and  it  is  so  ordered. 


222  DISTRICT  OF   COLUMBIA,   ETC. 

In  re  ROSS,  Petitioner. 
Supreme  Court  of  the  United  States.     1891. 

[140  United  States,  453.]  ^ 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  New  York. 

In  1880  the  American  consular  tribunal  in  Japan  tried  and 
convicted  Ross  for  a  murder  committed  on  an  American  merchant 
vessel  in  the  harbor  of  Yokohama,  and  sentenced  him  to  death. 
In  the  same  year  the  sentence  was  commuted  by  the  President  of 
the  United  States  to  life  imprisonment  in  the  penitentiary  at 
Albany.  In  1890  the  prisoner  applied  for  a  writ  of  habeas  corpus, 
on  the  ground  that  the  procedure  in  the  consular  tribunal  had 
not  included  indictment  and  a  petit  jury.  The  court,  after 
issuing  the  writ  and  hearing  counsel,  denied  the  prisoner's  motion 
for  a  discharge,  and  remanded  him  to  the  penitentiary.  44  Fed. 
185.     Thereupon  this  appeal  was  taken. 

G.  W.  Kirchwey,  for  appellant;  and  Parker,  Assistant  Attorney 
General,  contra. 

Field,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  Circuit  Court  did  not  refuse  to  discharge  the  petitioner 
upon  any  independent  conclusion  as  to  the  validity  of  the  legis- 
lation of  Congress  establishing  the  consular  tribunal  in  Japan, 
and  the  trial  of  Americans  for  offences  committed  within  the 
territory  of  that  country,  without  the  indictment  of  a  grand 
jury,  and  without  a  trial  by  a  petit  jury,  but  placed  its  decision 
upon  the  long  and  uniform  acquiescence  by  the  executive,  adminis- 
trative and  legislative  departments  of  the  government  in  the 
validity  of  the  legislation.  .  .  . 

The  Circuit  Court  might  have  found  an  additional  ground 
for  not  calling  in  question  the  legislation  of  Congress,  in  the 
uniform  practice  of  civilized  governments  for  centuries  to  pro- 
vide consular  tribunals  in  other  than  Christian  countries,  or  to 
invest  their  consuls  with  judicial  authority,  which  is  the  same 
thing,  for  the  trial  of  their  own  subjects  or  citizens  for  offences 
committed  in  those  countries,  as  well  as  for  the  settlement  of 
civil  disputes  between  them;  and  in  the  uniform  recognition, 
down  to  the  time  of  the  formation  of  our  government,  of  the 
fact  that  the  establishment  of  such  tribunals  was  among  the 

^  The  statement  has  not  been  reprinted.  —  Ed. 


In  re  ross,  petitioner.  223 

most  important  subjects  for  treaty  stipulations.  This  recog- 
nition of  their  importance  has  continued  ever  since,  though 
the  powers  of  those  tribunals  are  now  more  carefully  defined 
than  formerly.     Dainese  v.  Hale,  91  U.  S.  13.  .  .  . 

The  treaty-making  power  vested  in  our  government  extends 
to  all  proper  subjects  of  negotiation  with  foreign  governments. 
It  can,  equally  with  any  of  the  former  or  present  goverrmaents 
of  Europe,  make  treaties  providing  for  the  exercise  of  judicial 
authority  in  other  countries  by  its  officers  appointed  to  reside 
therein. 

We  do  not  understand  that  any  question  is  made  by  counsel 
as  to  its  power  in  this  respect.  His  objection  is  to  the  legisla- 
tion by  which  such  treaties  are  carried  out,  contending  that, 
so  far  as  crimes  of  a  felonious  character  are  concerned,  the  same 
protection  and  guarantee  against  an  undue  accusation  or  an 
unfair  trial,  secured  by  the  Constitution  to  citizens  of  the  United 
States  at  home,  should  be  enjoyed  by  them  abroad.  In  none 
of  the  laws  which  have  been  passed  by  Congress  to  give  effect 
to  treaties  of  the  kind  has  there  been  any  attempt  to  require 
indictment  by  a  grand  jury  before  one  can  be  called  upon  to 
answer  for  a  public  offence  of  that  grade  committed  in  those 
countries,  or  to  secure  a  jury  on  the  trial  of  the  offence.  Yet  the 
laws  on  that  subject  have  been  passed  without  objection  to  their 
constitutionality.  Indeed,  objection  on  that  ground  was  never 
raised  in  any  quarter,  so  far  as  we  are  informed,  until  a  recent 
period. 

It  is  now,  however,  earnestly  pressed  by  counsel  for  the  peti- 
tioner, but  we  do  not  think  it  tenable.  By  the  Constitution  a 
government  is  ordained  and  established  "  for  the  United  States 
of  America,"  and  not  for  countries  outside  of  their  limits.  The 
guarantees  it  affords  against  accusation  of  capital  or  infamous 
crimes,  except  by  indictment  or  presentment  by  a  grand  jury, 
and  for  an  impartial  trial  by  a  jury  when  thus  accused,  apply 
only  to  citizens  and  others  within  the  United  States,  or  who  are 
brought  there  for  trial  for  alleged  offences  committed  elsewhere, 
and  not  to  residents  or  temporary  sojourners  abroad.  Cook  v. 
United  States,  138  U.  S.  157,  181,  The  Constitution  can  have 
no  operation  in  another  country.  When,  therefore,  the  repre- 
sentatives or  officers  of  our  government  are  permitted  to  exercise 
authority  of  any  kind  in  another  country,  it  must  be  on  such 
conditions  as  the  two  countries  may  agree,  the  laws  of  neither  one 
being  obligatory  upon  the  other.     The  deck  of  a  private  American 


224  DISTRICT   OF   COLUMBIA,    ETC. 

vessel,  it  is  true,  is  considered  for  many  purposes  constructively 
as  territory  of  the  United  States,  yet  persons  on  board  of  such 
vessels,  whether  officers,  sailors,  or  passengers,  cannot  invoke 
the  protection  of  the  provisions  referred  to  until  brought  within 
the  actual  territorial  boundaries  of  the  United  States.  And, 
besides,  their  enforcement  abroad  in  numerous  places,  where 
it  would  be  highly  important  to  have  consuls  invested  with 
judicial  authority,  would  be  impracticable  from  the  impossi- 
bility of  obtaining  a  competent  grand  or  petit  jury.  The  re- 
quirement of  such  a  body  to  accuse  and  to  try  an  offender  would, 
in  a  majority  of  cases,  cause  an  abandonment  of  all  prosecution. 
The  framers  of  the  Constitution,  who  were  fully  aware  of  the 
necessity  of  having  judicial  authority  exercised  by  our  consuls 
in  non-Chfistian  countries,  if  commercial  intercourse  was  to  be 
had  with  their  people,  never  could  have  supposed  that  all  the 
guarantees  in  the  administration  of  the  law  upon  criminals  at 
home  were  to  be  transferred  to  such  consular  establishments, 
and  applied  before  an  American  who  had  committed  a  felony 
there  could  be  accused  and  tried.  They  must  have  known  that 
such  a  requirement  would  defeat  the  main  purpose  of  investing 
the  consul  with  judicial  authority.  .  .  . 

We  turn  then  to  the  treaties  between  Japan  and  the  United 
States.  .  .  . 

Our  government  has  always  treated  Article  IV  of  the  treaty 
of  1857  as  continuing  in  force,  and  it  is  pubhshed  as  such  in  the 
United  States  Consular  Regulations,  issued  in  1888.  Appendix 
No.  1,  p.  313.  Its  official  interpretation  is  found  in  Article  71 
of  those  regulations,  which  declares  that  "  consuls  have  exclusive 
jurisdiction  over  crimes  and  offences  committed  by  citizens  of 
the  United  States  in  Japan."  .  .  . 

The  legislation  of  Congress  to  carry  into  effect  the  treaty  with 
Japan  is  found  in  the  Revised  Statutes.  .  .  .  (Sees.  4083-4091). 
.  .  .  The  legislation  secures  a  regular  and  fair  trial  to  Americans 
committing  offences  within  that  empire. 

It  enacts  that  the  minister  and  consuls  of  the  United  States, 
appointed  to  reside  there,  shall,  in  addition  to  other  powers 
and  duties  imposed  upon  them  respectively,  be  invested  with 
the  judicial  authority  therein  described,  which  shall  appertain 
to  their  respective  offices  and  be  a  part  of  the  duties  belonging 
thereto,  so  far  as  the  same  is  allowed  by  treaty;  and  empowers 
them  to  arraign  and  try,  in  the  manner  therein  provided,  all 
citizens  of  the  United  States  charged  with  offences  against  law 


In  re  ross,  petitioner.  225 

committed  in  that  country,  and  to  sentence  such  offenders  as 
therein  provided,  and  to  issue  all  suitable  and  necessary  process 
to  carry  their  authority  into  execution.  It  declares  that  their 
jurisdiction  in  both  criminal  and  civil  matters  shall  in  all  cases 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the 
United  States,  which,  so  far  as  necessary  to  execute  the  treaty 
and  suitable  to  carry  it  into  effect,  are  extended  over  all  citizens 
of  the  United  States  in  Japan,  and  over  all  others  there  to  the 
extent  that  the  terms  of  the  treaty  justify  or  require.  It  also 
provides  that  where  such  laws  are  not  adapted  to  the  object, 
or  are  deficient  in  the  provisions  necessary  to  furnish  suitable 
remedies,  the  common  law  and  the  law  of  equity  and  admiralty 
shall  be  extended  in  like  manner  over  such  citizens  and  others; 
and  that  if  neither  the  common  law,  nor  the  law  of  equity,  or 
admiralty,  nor  the  statutes  of  the  United  States,  furnish  appro- 
priate and  sufficient  remedies,  the  minister  shall,  by  decrees  and 
regulations,  which  shall  have  the  force  of  law,  supply  such  defects 
and  deficiencies.  Each  of  the  consuls  is  authorized,  upon  facts 
within  his  own  knowledge,  or  which  he  has  good  reason  to  believe 
true,  or  upon  complaint  made  or  information  filed  in  writing  and 
authenticated  in  such  way  as  shall  be  prescribed  by  the  minister, 
to  issue  his  warrant  for  the  arrest  of  any  citizen  of  the  United 
States  charged  with  committing  in  the  country  an  offence  against 
law;  and  to  arraign  and  try  any  such  offender;  and  to  sentence 
him  to  punishment  in  the  manner  therein  prescribed. 

The  legislation  also  declares  that  insurrection  or  rebellion 
against  the  government,  with  intent  to  subvert  the  same,  and 
murder,  shall  be  punishable  with  death,  but  that  no  person  shall 
be  convicted  thereof  unless  the  consul  and  his  associates  in  the 
trial  all  concur  in  the  opinion,  and  the  minister  approves  of  the 
conviction.  It  also  provides  that  whenever  in  any  case  the  consul 
is  of  opinion  that,  by  reason  of  the  legal  questions  which  may 
arise  therein,  assistance  will  be  useful  to  him,  or  that  a  severer 
punishment  than  previously  specified  in  certain  cases  will  be 
required,  he  shall  summon  to  sit  mth  him  on  the  trial  one  or 
more  citizens  of  the  United  States,  not  exceeding  four,  and  in 
capital  cases  not  less  than  four,  who  shall  be  taken  by  lot  from  a 
list  which  has  been  previously  submitted  to  and  approved  by  the 
minister,  and  shall  be  persons  of  good  repute  and  competent  for 
the  duty. 

The  jurisdiction  of  the  consular  tribunal,  as  is  thus  seen,  is 
to  be  exercised  and  enforced  in  accordance  with  the  laws  of 


226  DISTRICT   OF   COLUMBIA,    ETC. 

the  United  States;  and  of  course  in  pursuance  of  them  the 
accused  will  have  an  opportunity  of  examining  the  complaint 
against  him,  or  will  be  presented  with  a  copy  stating  the  offence 
he  has  committed,  will  be  entitled  to  be  confronted  with  the 
witnesses  against  him  and  to  cross-examine  them,  and  to  have 
the  benefit  of  counsel;  and,  indeed,  will  have  the  benefit  of  all 
the  provisions  necessary  to  secure  a  fair  trial  before  the  consul 
and  his  associates.  The  only  complaint  of  this  legislation  made 
by  counsel  is  that,  in  directing  the  trial  to  be  had  before  the 
consul  and  associates  summoned  to  sit  with  him,  it  does  not 
require  a  previous  presentment  or  indictment  by  a  grand  jury, 
and  does  not  give  to  the  accused  a  petit  jury.  The  want  of  such 
clauses,  as  affecting  the  validity  of  the  legislation,  we  have  already 
considered.  It  is  not  pretended  that  the  prisoner  did  not  have, 
in  other  respects,  a  fair  trial  in  the  consular  court.  .  .  . 

We  have  not  considered  the  objection  to  the  discharge  of 
the  prisoner  on  the  ground  that  he  accepted  the  conditional 
pardon  of  the  President.  If  his  conviction  and  sentence  were 
void  for  want  of  jurisdiction  in  the  consular  tribunal,  it  may 
be  doubtful  whether  he  was  estopped,  by  his  acceptance  of  the 
pardon,  from  assailing  their  validity;  but  into  that  inquiry 
we  need  not  go,  for  the  consular  court  having  had  jurisdiction 
to  try  and  sentence  him,  there  can  be  no  question  as  to  the  bind- 
ing force  of  the  acceptance  Order  affirmed} 

1  By  the  treaty  of  Nov.  22,  1894,  it  was  provided  that  on  July  17,  1899, 
"  the  jurisdiction  then  exercised  hj  the  Courts  of  the  United  States  in  Japan 
and  all  the  exceptional  privileges,  exemptions  and  immunities  then  enjoyed 
by  citizens  of  the  United  States  as  a  part  of,  or  appurtenant  to  such  juris- 
diction, shall  absolutely  and  without  notice  cease  and  determine,  and  there- 
after all  such  jurisdiction  shall  be  assumed  and  exercised  by  Japanese  Courts." 
29  U.  S.  St.  at  Large,  848.  —  Ed. 


AMERICAN   PUBLISHING    COMPANY   V.    FISHER.  227 

AMERICAN  PUBLISHING  COMPANY  v.   FISHER. 

Supreme  Court  of  the  United  States.     1897. 

[166  United  States,  464.]  i 

Error  to  the  Supreme  Court  of  the  Territory  of  Utah. 

Action  on  a  contract  was  brought  in  the  District  Court  of 
Salt  Lake  County.  A  verdict  for  the  defendant  was  signed  by 
nine  jurors,  the  others  not  concurring.  The  court  received  the 
verdict  and  caused  it  to  be  entered  upon  the  record;  and  to  this 
action  of  the  court  the  plaintiff  excepted.  Judgment  was  rendered 
for  the  defendant  upon  this  verdict,  under  authority  of  Laws  of 
Utah,  1892,  page  46.  The  judgment  was  sustained  by  the 
Supreme  Court  of  the  Territory,  10  Utah,  147. 

Jeremiah  M.  Wilson  (with  whom  F.  W.  von  Cotzhausen  was  on 
the  brief),  for  plaintiff  in  error;  and  J.  L.  Rawlins,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

As  the  amount  in  controversy  is  over  $5000  this  court  in  any 
view  has  jurisdiction  of  the  case,  and  may  inquire  into  all  matters 
properly  preserved  in  the  record.  The  recital  in  the  bill  of 
exceptions  shows  that  proper  exceptions  were  taken  to  the  charge 
of  the  court  in  respect  to  the  number  of  jurors  whose  concurrence 
was  essential  to  the  verdict,  and  also  to  its  action  in  receiving 
and  entering  of  record  such  verdict. 

The  territorial  statute  was  relied  upon  as  authority  for  this 
action.  Its  validity,  therefore,  must  be  determined.  Whether 
the  Seventh  Amendment  to  the  Constitution  of  the  United 
States,  which  provides  that  "  in  suits  at  common  law,  where 
the  value  in  controversy  shall  exceed  twenty  dollars,  the  right 
of  trial  by  jury  shall  be  preserved,"  operates  ex  proprio  vigore 
to  invalidate  this  statute,  may  be  a  matter  of  dispute.  In 
Webster  v.  Reid,  11  How.  437,  an  act  of  the  legislature  of  the 
Territory  of  Iowa  dispensing  with  a  jury  in  a  certain  class  of 
common  law  actions  was  held  void.  While  in  the  opinion,  on 
page  460,  the  Seventh  Amendment  was  quoted,  it  was  also  said: 
"  The  organic  law  of  the  Territory  of  Iowa,  by  express  provision 
and  by  reference,  extended  the  laws  of  the  United  States,  in- 
cluding the  ordinance  of  1787,  over  the  Territory,  so  far  as  they 
are  apphcable";  and  the  ordinance  of  1787,  article  2,  in  terms 
provided  that  "  the  inhabitants  of  the  said  Territory  shall  always 

1  The  statement  has  not  been  reprinted.  —  Ed. 


228  DISTRICT  or  Columbia,  etc. 

be  entitled  to  the  benefits  of  the  writ  of  habeas  corpus,  and  of 
the  trial  by  jury."  So  the  invalidity  may  have  been  adjudged 
by  reason  of  the  conflict  with  Congressional  legislation.  In 
Reynolds  v.  United  States,  98  U.  S.  145,  154,  it  was  said,  in 
reference  to  a  criminal  case  coming  from  the  Territory  of  Utah, 
that  "  by  the  Constitution  of  the  United  States  (Amendment  VI) 
the  accused  was  entitled  to  a  trial  by  an  impartial  jury."  Both 
of  these  cases  were  quoted  in  Callan  v.  Wilson,  127  U.  S.  540, 
as  authorities  to  sustain  the  ruling  that  the  provisions  in  the 
Constitution  of  the  United  States  relating  to  trial  by  jury  are 
in  force  in  the  District  of  Columbia.  On  the  other  hand,  in 
Mormon  Church  v.  United  States,  136  U.  S.  1,  44,  it  was  said  by 
Mr.  Justice  Bradley,  speaking  for  the  court:  "Doubtless,  Con- 
gress in  legislating  for  the  Territories  would  be  subject  to  those 
fundamental  limitations  in  favor  of  personal  rights  which  are 
formulated  in  the  Constitution  and  its  amendments;  but  these 
limitations  would  exist  rather  by  inference  and  the  general  spirit 
of  the  Constitution  from  which  Congress  derives  all  its  powers, 
than  by  any  express  and  direct  application  of  its  provisions." 
And  in  McAlHster  v.  United  States,  141  U.  S.  174,  it  was  held 
that  the  constitutional  provision  in  respect  to  the  tenure  of 
judicial  offices  did  not  apply  to  territorial  judges. 

But  if  the  Seventh  Amendment  does  not  operate  in  and  of 
itself  to  invalidate  this  territorial  statute,  then  Congress  has 
full  control  over  the  Territories  irrespective  of  any  express  con- 
stitutional limitations,  and  it  has  legislated  in  respect  to  this 
matter.  In  the  first  place,  in  the  act  to  establish  a  territorial 
government  for  Utah,  act  of  September  9,  1850,  c.  51,  §  17, 
9  Stat.  453,  458,  it  enacted  "  that  the  Constitution  and  laws 
of  the  United  States  are  hereby  extended  over  and  declared  to 
be  in  force  in  said  Territory  of  Utah,  so  far  as  the  same,  or  any 
provision  thereof,  may  be  applicable."  A  subsequent  statute 
has  more  specific  reference  to  jury  trials.  Act  of  April  7,  1874, 
c.  80,  18  Stat.  27.  The  first  section  of  this  act,  after  confirming 
the  statutes  of  the  various  Territories  so  far  as  they  authorize 
a  uniform  course  of  proceeding  in  all  cases  whether  legal  or 
equitable,  closes  with  this  proviso:  "Provided,  that  no  party 
has  been  or  shall  be  deprived  of  the  right  of  trial  by  jury  in  cases 
cognizable  at  common  law." 

This,  of  course,  implies  not  merely  that  the  form  of  a  jury 
trial  be  preserved,  but  also  all  its  substantial  elements.  Walker 
V.  Southern  Pacific  Railroad,  165  U.  S.  593. 


DOWNES   V.    BIDWELL.  229 

Therefore,  either  the  Seventh  Amendment  to  the  Constitu- 
tion, or  these  acts  of  Congress,  or  all  together,  secured  to  every 
litigant  in  a  common  law  action  in  the  courts  of  the  Territory  of 
Utah  the  right  to  a  trial  by  jury,  and  nullified  any  act  of  its 
legislature  which  attempted  to  take  from  him  anything  which 
is  of  the  substance  of  that  right.  Now  unanimity  was  one  of 
the  peculiar  and  essential  features  of  trial  by  jury  at  the  common 
law.  No  authorities  are  needed  to  sustain  this  proposition. 
Whatever  may  be  true  as  to  legislation  which  changes  any  mere 
details  of  a  jury  trial,  it  is  clear  that  a  statute  which  destroys 
this  substantial  and  essential  feature  thereof  is  one  abridging  the 
right.  It  follows,  therefore,  that  the  court  erred  in  receiving  a 
verdict  returned  by  only  nine  jurors,  the  others  not  concurring. 

In  order  to  guard  against  any  misapprehension  it  may  be 
proper  to  say  that  the  power  of  a  State  to  change  the  rule  in 
respect  to  unanimity  of  jurors  is  not  before  us  for  considera- 
tion. Walker  v.  Sauvinet,  92  U.  S.  90;  Hurtado  v.  California, 
110  U.  S.  516. 

The  judgment  will  be 

Reversed,  and  as  the  questions  involved  in  the  case  are  not  of  a 

Federal  nature,  and  diverse  citizenship  is  not  alleged,  the  case 

must  be  remanded  to  the  Supreme  Court  of  the  State  for  further 

proceedings. 


DOWNES  V.   BIDWELL. 

Supreme  Court  of  the  United  States.     1901. 

[182  United  States,  244.]  i 

Error  to  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York. 

This  was  an  action  to  recover  duties  paid  under  protest  to  the 
collector  of  the  port  of  New  York  on  goods  brought  into  that  port 
from  Porto  Hico  in  November,  1900,  after  the  passage  of  the  so- 
called  Foraker  Act  providing  temporary  government.  On 
demurrer  to  the  complaint  for  want  of  jurisdiction  and  for  in- 
sufficiency of  averments,  the  complaint  was  dismissed.  There- 
upon the  plaintiff  sued  out  a  writ  of  error. 

^  The  statement  has  not  been  reprinted.  —  Ed. 


230  DISTRICT   OF   COLUMBIA,    ETC. 

F.  R.  Coudert,  Jr.,  and  others,  for  plaintiff  in  error;  and  J.  K. 
Richards,  Solicitor  General,  and  P.  C.  Knox,  Attorney  General, 
for  defendants  in  error. 

Brown,  J.,  .  .  .  announced  the  conclusion  and  judgment  of 
the  court. 

This  case  involves  the  question  whether  merchandise  brought 
into  the  port  of  New  York  from  Porto  Rico  since  the  passage 
of  the  Foraker  act,  is  exempt  from  duty,  notwithstanding  the 
third  section  of  that  act,  which  requires  the  payment  of  "  fif- 
teen per  centum  of  the  duties  which  are  required  to  be  levied, 
collected  and  paid  upon  like  articles  of  merchandise  imported 
from  foreign  countries."  .  .  . 

In  the  case  of  De  Lima  v.  Bidwell,  just  decided,  we  held  that 
upon  the  ratification  of  the  treaty  of  peace  with  Spain,  Porto 
Rico  ceased  to  be  a  foreign  country,  and  became  a  territory 
of  the  United  States,  and  that  duties  were  no  longer  collectible 
upon  merchandise  brought  from  that  island.  We  are  now  asked 
to  hold  that  it  became  a  part  of  the  United  States  within  that  pro- 
vision of  the  Constitution  which  declares  that  "all  duties,  imposts 
and  excises  shall  be  uniform  throughout  the  United  States." 
Art.  I,  sec.  8.  If  Porto  Rico  be  a  part  of  the  United  States,  the 
Foraker  act  imposing  duties  upon  its  products  is  unconstitu- 
tional, not  only  by  reason  of  a  violation  of  the  uniformity  clause, 
but  because  by  section  9  "  vessels  bound  to  or  from  one  State  " 
cannot  "  be  obliged  to  enter,  clear  or  pay  duties  in  another." 

The  case  also  involves  the  broader  question  whether  the  rev- 
enue clauses  of  the  Constitution  extend  of  their  own  force  to 
our  newly  acquired  territories.  The  Constitution  itself  does 
not  aijswer  the  question.  Its  solution  must  be  found  in  the 
nature  of  the  government  created  by  that  instrument,  in  the 
opinion  of  its  contemporaries,  in  the  practical  construction  put 
upon  it  by  Congress  and  in  the  decisions  of  this  court. 

The  Federal  government  was  created  in  1777  by  the  union  of 
thirteen  colonies  of  Great  Britain  in  "  certain  articles  of  con- 
federation and  perpetual  union,"  the  first  one  of  which  declared 
that  "  the  stile  of  this  confederacy  shall  be  the  United  States  of 
America."  Each  member  of  the  confederacy  was  denominated 
a  State.  Provision  was  made  for  the  representation  of  each 
State  by  not  less  than  two  nor  more  than  seven  delegates;  but 
no  mention  was  made  of  territories  or  other  lands,  except  in 
Art.  XI,  which  authorized  the  admission  of  Canada,  upon  its 
"  acceding  to  this  confederation,"  and  of  other  colonies  if  such 


DOWNES   V.    BIDWELL.  231 

admission  were  agreed  to  by  nine  States.  At  this  time  several 
States  made  claims  to  large  tracts  of  land  in  the  unsettled  West, 
which  they  were  at  first  indisposed  to  relinquish.  .  .  .  Most  of 
these  States  in  the  meantime  having  ceded  their  interests  in  these 
lands,  the  confederate  Congress,  in  1787,  created  the  first  terri- 
torial government  northwest  of  the  Ohio  River,  provided  for 
local  self-government,  a  bill  of  rights,  a  representation  in  Con- 
gress by  a  delegate,  who  should  have  a  seat  "  with  a  right  of 
debating,  but  not  of  voting,"  and  for  the  ultimate  formation  of 
States  therefrom,  and  their  admission  into  the  Union  on  an  equal 
footing  with  the  original  States. 

The  confederacy,  owing  to  well-known  historical  reasons, 
having  proven  a  failure,  a  new  Constitution  was  formed  in  1787 
by  "  the  people  of  the  United  States  "  "  for  the  United  States 
of  America,"  as  its  preamble  declares.  All  legislative  powers 
were  vested  in  a  Congress  consisting  of  representatives  from 
the  several  States,  but  no  provision  was  made  for  the  admission 
of  delegates  from  the  territories,  and  no  mention  was  made  of 
territories  as  separate  portions  of  the  Union,  except  that  Con- 
gress was  empowered  "  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belong- 
ing to  the  United  States."  At  this  time  all  of  the  States  had 
ceded  their  unappropriated  lands  except  North  Carolina  and 
Georgia.  .  .  . 

It  is  sufficient  to  observe  in  relation  to  these  three  funda- 
mental instruments  that  it  can  nowhere  be  inferred  that  the 
territories  were  considered  a  part  of  the  United  States.  The 
Constitution  was  created  by  the  people  of  the  United  States, 
as  a  union  of  States,  to  be  governed  solely  by  representatives 
of  the  States;  and  even  the  provision  rehed  upon  here,  that 
all  duties,  imposts,  and  excises  shall  be  uniform  "  throughout 
the  United  States,"  is  explained  by  subsequent  provisions  of 
the  Constitution,  that  "  no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State,"  and  "  no  preference  shall  be  given 
by  any  regulation  of  commerce  or  revenue  to  the  ports  of  one 
State  over  those  of  another;  nor  shall  vessels  bound  to  or  from 
one  State  be  obliged  to  enter,  clear  or  pay  duties  in  another." 
In  short,  the  Constitution  deals  with  States,  their  people,  and 
their  representatives.  .  .  . 

The  question  of  the  legal  relations  between  the  States  and 
the  newly  acquired  territories  first  became  the  subject  of  public 


232  DISTRICT   OF   COLUMBIA.,    ETC. 

discussion    in    connection   with    the   purchase    of   Louisiana   in 

1803.  .  .  . 

Two  bills  were  passed,  one  October  31,  1803,  2  Stat.  245, 
authorizing  the  President  to  take  possession  of  the  territory,  and 
to  continue  the  existing  government,  and  the  other  November 
10,  1803,  2  Stat.  245,  making  provision  for  the  payment  of  the 
purchase  price.      These  acts  continued  in  force  until  March  26, 

1804,  when  a  new  act  was  passed  providing  for  a  temporary 
government,  2  Stat.  283,  c.  38,  and  vesting  all  legislative  powers 
in  a  governor  and  legislative  council,  to  be  appointed  by  the 
President.  These  statutes  may  be  taken  as  expressing  the  views 
of  Congress,  first,  that  territory  may  be  lawfully  acquired  by 
treaty,  with  a  provision  for  its  ultimate  incorporation  into  the 
Union;  and,  second,  that  a  discrimination  in  favor  of  certain 
foreign  vessels  trading  with  the  ports  of  a  newly  acquired  terri- 
tory is  no  violation  of  that  clause  of  the  Constitution,  Art.  1, 
sec.  9,  that  declares  that  no  preference  shall  be  given  to  the  ports 
of  one  State  over  those  of  another.  It  is  evident  that  the  consti- 
tutionality of  this  discrimination  can  only  by  supported  upon 
the  theory  that  ports  of  territories  are  not  ports  of  States  within 
the  meaning  of  the  Constitution. 

The  same  construction  was  adhered  to  in  the  treaty  with 
Spain  for  the  purchase  of  Florida,  8  Stat.  252,  the  sixth  article 
of  which  provided  that  the  inhabitants  should  "  be  incorporated 
into  the  Union  of  the  United  States,  as  soon  as  may  be  consist- 
ent with  the  principles  of  the  Federal  Constitution;"  and  the 
fifteenth  article  of  which  agreed  that  Spanish  vessels  coming 
directly  from  Spanish  ports  and  laden  with  productions  of  Span- 
ish growth  or  manufacture,  should  be  admitted,  for  the  term 
of  twelve  years,  to  the  ports  of  Pensacola  and  St.  Augustine, 
"  without  paying  other  or  higher  duties  on  their  cargoes,  or  of 
tonnage,  than  will  be  paid  by  the  vessels  of  the  United  States," 
and  that  "  during  the  said  term  no  other  nation  shall  enjoy  the 
same  privileges  within  the  ceded  territories." 

So,  too,  in  the  act  annexing  the  Republic  of  Hawaii,  there 
was  a  provision  continuing  in  effect  the  customs  relations  of 
the  Hawaiian  Islands  with  the  United  States  and  other  coun- 
tries, the  effect  of  which  was  to  compel  the  collection  in  those 
islands  of  a  duty  upon  certain  articles,  whether  coming  from 
the  United  States  or  other  countries,  much  greater  than  the 
duty  provided  by  the  general  tariff  law  then  in  force.  This 
was  a  discrimination  against  the  Hawaiian  ports  wholly  incon- 


DOWNES   V.    BIDWELL.  233 

sistent  with  the  revenue  clauses  of  the  Constitution,  if  such 
clauses  were  there  operative. 

The  very  treaty  with  Spain  under  discussion  in  this  case  con- 
tains similar  discriminative  provisions,  which  are  apparently 
irreconcilable  with  the  Constitution,  if  that  instrument  be  held 
to  extend  to  these  islands  immediately  upon  their  cession  to  the 
United  States.  .  .  . 

Notwithstanding  these  provisions  for  the  incorporation  of 
territories  into  the  Union,  Congress,  not  only  in  organizing  the 
territory  of  Louisiana  by  act  of  March  26,  1804,  but  all  other 
territories  carved  out  by  this  vast  inheritance,  has  assumed  that 
the  Constitution  did  not  extend  to  them  of  its  own  force,  and 
has  in  each  case  made  special  provision,  either  that  their  legis- 
latures shall  pass  no  law  inconsistent  with  the  Constitution  of 
the  United  States,  or  that  the  Constitution  or  laws  of  the  United 
States  shall  be  the  supreme  law  of  such  territories.  Finally, 
in  Rev.  Stat.  sec.  1891,  a  general  provision  was  enacted  that 
"  the  Constitution  and  all  laws  of  the  United  States  which  are 
not  locally  inapplicable  shall  have  the  same  force  and  effect 
within  all  the  organized  territories,  and  in  every  territory  here- 
after organized,  as  elsewhere  within  the  United  States."  .  .  . 

Indeed,  whatever  may  have  been  the  fluctuations  of  opinion 
in  other  bodies  (and  even  this  court  has  not  been  exempt  from 
them).  Congress  has  been  consistent  in  recognizing  the  difference 
between  the  States  and  territories  under  the  Constitution. 

The  decisions  of  this  court  upon  this  subject  have  not  been 
altogether  harmonious.  Some  of  them  are  based  upon  the 
theory  that  the  Constitution  does  not  apply  to  the  territories 
without  legislation.  Other  cases,  arising  from  territories  where 
such  legislation  has  been  had,  contain  language  which  would 
justify  the  inference  that  such  legislation  was  unnecessary,  and 
that  the  Constitution  took  effect  immediately  upon  the  cession 
of  the  territory  to  the  United  States.  It  may  be  remarked, 
upon  the  threshold  of  an  analysis  of  these  cases,  that  too  much 
weight  must  not  be  given  to  general  expressions  found  in  sev- 
eral opinions  that  the  power  of  Congress  over  territories  is  com- 
plete and  supreme,  because  these  words  may  be  interpreted  as 
meaning  only  supreme  under  the  Constitution;  nor  upon  the 
other  hand,  to  general  statements  that  the  Constitution  covers 
the  territories  as  well  as  the  States,  since  in  such  cases  it  will 
be  found  that  acts  of  Congress  had  already  extended  the  Con- 
stitution to  such  territories,  and  that  thereby  it  subordinated 


234  DISTRICT   OF    COLUMBIA,    ETC. 

not  only  its  own  acts,  but  those  of  the  territorial  legislatures, 
to  what  had  become  the  supreme  law  of  the  land.  .  .  . 

It  by  no  means  becomes  necessary  to  show  that  none  of  the 
articles  of  the  Constitution  apply  to  the  Island  of  Porto  Rico. 
There  is  a  clear  distinction  between  such  prohibitions  as  go  to 
the  very  root  of  the  power  of  Congress  to  act  at  all,  irrespective 
of  time  or  place,  and  such  as  are  operative  only  "  throughout  the 
United  States  "  or  among  the  several  States. 

Thus,  when  the  Constitution  declares  that  "  no  bill  of  attainder 
or  ex  post  facto  law  shall  be  passed,"  and  that  "  no  title  of  no- 
bility shall  be  granted  by  the  United  States,"  it  goes  to  the 
competency  of  Congress  to  pass  a  bill  of  that  description.  Per- 
haps, the  same  remark  may  apply  to  the  First  Amendment, 
that  "  Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof;  or  abridg- 
ing the  freedom  of  speech,  or  of  the  press;  or  the  right  of  the 
people  to  peacefully  assemble,  and  to  petition  the  government 
for  a  redress  of  grievances."  We  do  not  wish,  however,  to  be 
understood  as  expressing  an  opinion  how  far  the  bill  of  rights 
contained  in  the  first  eight  amendments  is  of  general  and  how 
far  of  local  application. 

Upon  the  other  hand,  when  the  Constitution  declares  that 
all  duties  shall  be  uniform  "  throughout  the  United  States,"  it 
becomes  necessary  to  inquire  whether  there  be  any  territory 
over  which  Congress  has  jurisdiction  which  is  not  a  part  of  the 
"  United  States,"  by  which  term  we  understand  the  States 
whose  people  united  to  form  the  Constitution,  and  such  as  have 
since  been  admitted  to  the  Union  upon  an  equality  with  them. 
Not  only  did  the  people  in  adopting  the  Thirteenth  Amend- 
ment thus  recognize  a  distinction  between  the  United  States 
and  "  any  place  subject  to  their  jurisdiction,"  but  Congress 
itself,  in  the  act  of  March  27,  ISO^I,  c.  56,  2  Stat.  298,  providing 
for  the  proof  of  public  records,  applied  the  provisions  of  the  act 
not  only  to  "  every  court  and  office  within  the  United  States," 
but  to  the  "  courts  and  offices  of  the  respective  territories  of 
the  United  States,  and  countries  subject  to  the  jurisdiction  of 
the  United  States,"  as  to  the  courts  and  oflfices  of  the  several 
States.  .  .  . 

We  are  also  of  opinion  that  the  power  to  acquire  territory  by 
treaty  implies  not  only  the  power  to  govern  such  territory,  but 
to  prescribe  upon  what  terms  the  United  States  wall  receive  its 


DOWNES    V.    BIDWELL.  235 

inhabitants,  and  what  their  status  shall  be  in  what  Chief  Jus- 
tice Marshall  termed  the  "  American  Empire."  .  .  . 

We  suggest,  without  intending  to  decide,  that  there  may  be 
a  distinction  between  certain  natural  rights,  enforced  in  the 
Constitution  by  prohibitions  against  interference  with  them, 
and  what  may  be  termed  artificial  or  remedial  rights,  which 
are  pecuHar  to  our  own  system  of  jurisprudence.  Of  the  former 
class  are  the  rights  to  one's  owti  religious  opinion  and  to  a  public 
expression  of  them,  or,  as  sometimes  said,  to  worship  God  accord- 
ing to  the  dictates  of  one's  own  conscience;  the  right  to  per- 
sonal liberty  and  individual  property;  to  freedom  of  speech  and 
of  the  press;  to  free  access  to  courts  of  justice,  to  due  process 
of  law  and  to  an  equal  protection  of  the  laws;  to  immunities 
from  unreasonable  searches  and  seizures,  as  well  as  cruel  and 
unusual  punishments;  and  to  such  other  immunities  as  are  in- 
dispensable to  a  free  government.  Of  the  latter  class  are  the 
rights  to  citizenship,  to  suffrage.  Minor  v.  Happersett,  21  Wall. 
162,  and  to  the  particular  methods  of  procedure  pointed  out  in 
the  Constitution,  which  are  peculiar  to  Anglo-Saxon  jurispru- 
dence, and  some  of  which  have  already  been  held  by  the  States 
to  be  unnecessary  to  the  proper  protection  of  individuals. 

Whatever  may  be  finally  decided  by  the  American  people  as  to 
the  status  of  these  islands  and  their  inhabitants  —  whether  they 
shall  be  introduced  into  the  sisterhood  of  States  or  be  permitted 
to  form  independent  governments  —  it  does  not  follow  that,  in 
the  meantime,  awaiting  that  decision,  the  people  are  in  the  matter 
of  personal  rights  unprotected  by  the  provisions  of  our  Constitu- 
tion, and  subject  to  the  merely  arbitrary  control  of  Congress. 
Even  if  regarded  as  aliens,  they  are  entitled  under  the  principles  of 
the  Constitution  to  be  protected  in  life,  liberty  and  property.  .  .  . 

In  passing  upon  the  questions  involved  in  this  case  and  kindred 
cases,  we  ought  not  to  overlook  the  fact  that,  while  the  Consti- 
tution was  intended  to  establish  a  permanent  form  of  govern- 
ment for  the  States  which  should  elect  to  take  advantage  of  its 
conditions,  and  continue  for  an  indefinite  future,  the  vast  possi- 
bihties  of  that  future  could  never  have  entered  the  minds  of  its 
framers.  .  .  .  The  question  of  territories  was  dismissed  with  a 
single  clause,  apparently  applicable  only  to  the  territories  then 
existing,  giving  Congress  the  power  to  govern  and  dispose  of 
them.  .  .  . 

If  it  be  once  conceded  that  we  are  at  liberty  to  acquire  foreign 
territory,  a  presumption  arises  that  our  power  with  respect  to 


236  DISTRICT   OF   COLUMBIA,    ETC. 

such  territories  is  the  same  power  which  other  nations  have  been 
accustomed  to  exercise  with  respect  to  territories  acquired  by 
them.  If,  in  Umiting  the  power  which  Congress  was  to  exercise 
within  the  United  States,  it  was  also  intended  to  Umit  it  with 
regard  to  such  territories  as  the  people  of  the  United  States 
should  thereafter  acquire,  such  limitations  should  have  been 
expressed.  Instead  of  that,  we  find  the  Constitution  speaking 
only  to  States,  except  in  the  territorial  clause,  which  is  absolute 
in  its  terms,  and  suggestive  of  no  limitations  upon  the  power  of 
Congress  in  dealing  with  them.  The  States  could  only  delegate 
to  Congress  such  powers  as  they  themselves  possessed,  and  as 
they  had  no  power  to  acquire  new  territory  they  had  none  to 
delegate  in  that  connection.  The  logical  inference  from  this  is, 
that  if  Congress  had  power  to  acquire  new  territory,  which  is 
conceded,  that  power  was  not  hampered  by  the  constitutional 
provisions.  If,  upon  the  other  hand,  we  assume  that  the  terri- 
torial clause  of  the  Constitution  was  not  intended  to  be  restricted 
to  such  territory  as  the  United  States  then  possessed,  there  is 
nothing  in  the  Constitution  to  indicate  that  the  power  of  Congress 
in  dealing  with  them  was  intended  to  be  restricted  by  any  of 
the  other  provisions.  .  .  . 

The  liberality  of  Congress  in  legislating  the  Constitution  into 
all  our  contiguous  territories  has  undoubtedly  fostered  the  im- 
pression that  it  went  there  by  its  own  force,  but  there  is  nothing 
in  the  Constitution  itself,  and  little  in  the  interpretation  put 
upon  it,  to  confirm  that  impression.  .  .  .  The  executive  and 
legislative  departments  of  the  government  have  for  more  than  a 
century  interpreted  this  silence  as  precluding  the  idea  that  the 
Constitution  attached  to  these  territories  as  soon  as  acquired, 
and  unless  such  interpretation  be  manifestly  contrary  to  the 
letter  or  spirit  of  the  Constitution,  it  should  be  followed  by  the 
judicial  department.  Cooley's  Consti.  Lim.,  sees.  81  to  85. 
Burrow-Giles  Lithographic  Co.  v.  Sarony,  111  U.  S.  53,  57;  Field 
V.  Clark,  143  U.  S.  649,  691.  .  .  . 

We  are  therefore  of  opinion  that  the  Island  of  Porto  Rico  is 
a  territory  appurtenant  and  belonging  to  the  United  States, 
but  not  a  part  of  the  United  States  within  the  revenue  clauses 
of  the  Constitution;  that  the  Foraker  act  is  constitutional,  so 
far  as  it  imposes  duties  upon  imports  from  such  island,  and  that 
the  plaintiff  cannot  recover  back  the  duties  exacted  in  this  case. 

The  judgment  of  the  Circuit  Court  is  therefore. 

Affirmed. 


DOWNES   V.    BIDWELL.  237 

White,  J.,  with  whom  concurred  Shiras  and  McKenna,  JJ., 
uniting  in  the  judgment  of  affirmance.  .  .  . 

In  the  result  I  Hkewise  concur.  As,  however,  the  reasons 
which  cause  me  to  do  so  are  different  from,  if  not  in  conflict  with, 
those  expressed  in  that  opinion,  if  its  meaning  is  by  me  not  mis- 
conceived, it  becomes  my  duty  to  state  the  convictions  which 
control  me.  .  .  . 

Congress  in  legislating  for  Porto  Rico  was  only  empowered  to 
act  within  the  Constitution  and  subject  to  its  applicable  limita- 
tions. .  .  . 

Albeit,  as  a  general  rule,  the  status  of  a  particular  territory 
has  to  be  taken  in  view  when  the  applicability  of  any  provision 
of  the  Constitution  is  questioned,  it  does  not  follow  when  the 
Constitution  has  absolutely  withheld  from  the  government  all 
power  on  a  given  subject,  that  such  an  inquiry  is  necessary. 
Undoubtedly,  there  are  general  prohibitions  in  the  Constitution 
in  favor  of  the  liberty  and  property  of  the  citizen  which  are  not 
mere  regulations  as  to  the  form  and  manner  in  which  a  conceded 
power  may  be  exercised,  but  which  are  an  absolute  denial  of 
all  authority  under  any  circumstances  or  conditions  to  do  par- 
ticular acts.  In  the  nature  of  things,  limitations  of  this  char- 
acter cannot  be  under  any  circumstances  transcended,  because 
of  the  complete  absence  of  power. 

The  distinction  which  exists  between  the  two  characters  of 
restrictions,  those  which  regulate  a  granted  power  and  those 
which  withdraw  all  authority  on  a  particular  subject,  has  in 
effect  been  always  conceded,  even  by  those  who  most  strenuously 
insisted  on  the  erroneous  principle  that  the  Co-istitution  did  not 
apply  to  Congress  in  legislating  for  the  territories,  and  was  not 
operative  in  such  districts  of  country.  .  .  . 

There  is  in  reason  then  no  room  in  this  case  to  contend  that 
Congress  can  destroy  the  liberties  of  the  people  of  Porto  Rico 
by  exercising  in  their  regard  powers  against  freedom  and  jus- 
tice which  the  Constitution  has  absolutely  denied.  There  can 
also  be  no  controversy  as  to  the  right  of  Congress  to  locally 
govern  the  island  of  Porto  Rico  as  its  wisdom  may  decide  and 
in  so  doing  to  accord  only  such  degree  of  representative  govern- 
ment as  may  be  determined  on  by  that  body.  There  can  also  be 
no  contention  as  to  the  authority  of  Congress  to  levy  such  local 
taxes  in  Porto  Rico  as  it  may  choose,  even  although  the  amount 
of  the  local  burden  so  levied  be  manifold  more  onerous  than 
is  the  duty  with  which  this  case  is  concerned.     But  as  the  duty 


238  DISTRICT   OF    COLUMBIA,    ETC. 

in  question  was  not  a  local  tax,  since  it  was  levied  in  the  United 
States  on  goods  coming  from  Porto  Rico,  it  follows  that  if  that 
island  was  a  part  of  the  United  States,  the  duty  was  repugnant 
to  the  Constitution,  since  the  authority  to  levy  an  impost  duty 
conferred  by  the  Constitution  on  Congress,  does  not,  as  I  have 
conceded,  include  the  right  to  lay  such  a  burden  on  goods  com- 
ing from  one  to  another  part  of  the  United  States.  And,  be- 
sides, if  Porto  Rico  was  a  part  of  the  United  States  the  exaction 
was  repugnant  to  the  uniformity  clause. 

The  sole  and  only  issue,  then,  is  not  whether  Congress  has 
taxed  Porto  Rico  without  representation  —  for,  whether  the  tax 
was  local  or  national,  it  could  have  been  imposed,  although 
Porto  Rico  had  no  representative  local  government  and  was 
not  represented  in  Congress  —  but  is,  whether  the  particular 
tax  in  question  was  levied  in  such  form  as  to  cause  it  to  be 
repugnant  to  the  Constitution.  This  is  to  be  resolved  by 
answering  the  inquiry,  Had  Porto  Rico,  at  the  time  of  the  pas- 
sage of  the  act  in  question,  been  incorporated  into  and  become 
an  integral  part  of  the  United  States  ? 

On  the  one  hand,  it  is  affirmed  that,  although  Porto  Rico 
had  been  ceded  by  the  treaty  with  Spain  to  the  United  States, 
the  cession  was  accompanied  by  such  conditions  as  prevented 
that  island  from  becoming  an  integral  part  of  the  United  States, 
at  least,  temporarily,  and  until  Congress  had  so  determined. 
On  the  other  hand,  it  is  insisted  that  by  the  fact  of  cession  to 
the  United  States  alone,  irrespective  of  any  conditions  found 
in  the  treaty,  Porto  Rico  became  a  part  of  the  United  States, 
and  was  incorporated  into  it.  It  is  incompatible  with  the  Con- 
stitution, it  is  argued,  for  the  government  of  the  United  States 
to  accept  a  cession  of  territory  from  a  foreign  country  without 
complete  incorporation  following  as  an  immediate  result,  and 
therefore  it  is  contended  that  it  is  immaterial  to  inquire  what 
were  the  conditions  of  the  cession,  since  if  there  were  any  which 
were  intended  to  prevent  incorporation  they  were  repugnant 
to  the  Constitution  and  void.  The  result  of  the  argument  is  that 
the  Government  of  the  United  States  is  absolutely  without  power 
to  acquire  and  hold  territory  as  property  or  as  appurtenant  to 
the  United  States.  .  .  . 

It  may  not  be  doubted  that  by  the  general  principles  of  tlie 
law  of  nations  every  government  which  is  s,overeign  within  its 
sphere  of  action  possesses  as  an  inherent  attribute  the  power  to 
acquire  territory  by  discovery,  by  agreement  or  treaty,  and  by 


DOWNES   V.    BIDWELL,  239 

conquest.  It  cannot  also  be  gainsaid  that  as  a  general  rule 
wherever  a  government  acquires  territory  as  a  result  of  any  of 
the  modes  above  stated,  the  relation  of  the  territory  to  the  new 
government  is  to  be  determined  by  the  acquiring  power  in  the 
absence  of  stipulations  upon  the  subject.  .  .  . 

When  our  forefathers  threw  off  their  allegiance  to  Great  Brit- 
ain and  established  a  republican  government,  assuredly  they 
deemed  that  the  nation  which  they  called  into  being  was  en- 
dowed with  those  general  powers  to  acquire  territory  which  all 
independent  governments  in  virtue  of  their  sovereignty  enjoyed. 
This  is  demonstrated  by  the  concluding  paragraph  of  the  Dec- 
laration of  Independence,  which  reads  as  follows: 

"  As  free  and  independent  States,  they  [the  United  States  of 
America]  have  full  power  to  levy  war,  conclude  peace,  contract 
alliances,  establish  commerce,  and  to  do  all  other  acts  and  things 
which  independent  States  may  of  right  do." 

That  under  the  confederation  it  was  considered  that  the  gov- 
ernment of  the  United  States  had  authority  to  acquire  territory 
like  any  other  sovereignty,  is  clearly  established  by  the  elev- 
enth of  the  articles  of  confederation. 

The  decisions  of  this  court  leave  no  room  for  question  that, 
under  the  Constitution,  the  government  of  the  United  States, 
in  virtue  of  its  sovereignty,  supreme  within  the  sphere  of  its 
delegated  power,  has  the  full  right  to  acquire  territory  enjoyed 
by  every  other  sovereign  nation.  .  .  . 

Indeed,  it  is  superfluous  to  cite  authorities  establishing  the 
right  of  the  government  of  the  United  States  to  acquire  terri- 
tory, in  view  of  the  possession  of  the  Northwest  Territory  when 
the  Constitution  was  framed  and  the  cessions  to  the  general 
government  by  various  States  subsequent  to  the  adoption  of 
the  Constitution,  and  in  view  also  of  the  vast  extension  of  the 
territory  of  the  United  States  brought  about  since  the  existence 
of  the  Constitution  by  substantially  every  form  of  acquisition 
known  to  the  law  of  nations.  .  .  . 

The  general  principle  of  the  law  of  nations,  already  stated, 
is  that  acquired  territory,  in  the  absence  of  agreement  to  the 
contrary,  will  bear  such  relation  to  the  acquiring  government 
as  may  be  by  it  determined.  To  concede  to  the  government 
of  the  United  States  the  right  to  acquire  and  to  strip  it  of  all 
power  to  protect  the  birthright  of  its  own  citizens  and  to  pro- 
vide for  the  well-being  of  the  acquired  territory  by  such  enact- 
ments as  may  in  view  of  its  condition  be  essential,  is,  in  effect, 


240  DISTRICT   OF    COLUMBIA,    ETC. 

to  say  that  the  United  States  is  helpless  in  the  family  of  na- 
tions, and  does  not  possess  that  authority  which  has  at  all  times 
been  treated  as  an  incident  of  the  right  to  acquire.  .  .  . 

Gray,  J.,  concurring. 

Concurring  in  the  judgment  of  affirmance  in  this  case,  and  in 
substance  agreeing  with  the  opinion  of  Mr.  Justice  White,  I 
will  sum  up  the  reasons  for  my  concurrence  in  a  few  proposi- 
tions, which  may  also  indicate  my  position  in  other  cases  now 
standing  for  judgment. 

The  cases  now  before  the  court  do  not  touch  the  authority  of 
the  United  States  over  the  Territories,  in  the  strict  and  technical 
sense,  being  those  which  lie  within  the  United  States,  as  bounded 
by  the  Atlantic  and  Pacific  Oceans,  the  Dominion  of  Canada 
and  the  Republic  of  Mexico,  and  the  Territories  of  Alaska  and 
Hawaii;  but  they  relate  to  territory,  in  the  broader  sense,  ac- 
quired by  the  United  States  by  war  with  a  foreign  State.  .  .  . 

The  civil  government  of  the  United  States  cannot  extend  im- 
mediately, and  of  its  own  force,  over  territory  acquired  by  war. 
Such  territory  must  necessarily,  in  the  first  instance,  be  gov- 
erned by  the  military  power  under  the  control  of  the  President 
as  commander  in  chief.  Civil  government  cannot  take  effect  at 
once,  as  soon  as  possession  is  acquired  under  military  authority, 
or  even  as  soon  as  that  possession  is  confirmed  by  treaty.  It 
can  only  be  put  in  operation  by  the  action  of  the  appropriate 
political  department  of  the  government,  at  such  time  and  in  such 
degree  as  that  department  may  determine.  There  must,  of  ne- 
cessity, be  a  transition  period. 

In  a  conquered  territory,  civil  government  must  take  effect, 
either  by  the  action  of  the  treaty-making  power,  or  by  that  of 
the  Congress  of  the  United  States,  The  office  of  a  treaty  of 
cession  ordinarily  is  to  put  an  end  to  all  authority  of  the  foreign 
government  over  the  territory;  and  to  subject  the  territory  to 
the  disposition  of  the  Government  of  the  United  States. 

The  government  and  disposition  of  territory  so  acquired  be- 
long to  the  Government  of  the  United  States,  consisting  of  the 
President,  the  Senate,  elected  by  the  States,  and  the  House  of 
Representatives,  chosen  by  and  immediately  representing  the 
people  of  the  United  States.  .  .  . 

In  the  absence  of  Congressional  legislation,  the  regulation  of 
the  revenue  of  the  conquered  territory,  even  after  the  treaty  of 
cession,  remains  with  the  executive  and  military  authority. 


DOWNES   V.    BID  WELL.  241 

So  long  as  Congress  has  not  incorporated  the  territory  into 
the  United  States,  neither  mihtary  occupation  nor  cession  by 
treaty  makes  the  conquered  territory  domestic  territory,  in  the 
sense  of  the  revenue  laws.  ... 

If  Congress  is  not  ready  to  construct  a  complete  government 
for  the  conquered  territory,  it  may  establish  a  temporary  gov- 
ernment, which  is  not  subject  to  all  the  restrictions  of  the  Con- 
stitution. 

Such  was  the  effect  of  the  act  of  Congress  of  April  12,  1900, 
c.  191,  entitled  "  An  act  temporarily  to  provide  revenues  and  a 
civil  government  for  Porto  Rico,  and  for  other  purposes."  By 
the  third  section  of  that  act,  it  was  expressly  declared  that  the 
duties  thereby  established  on  merchandise  and  articles  going 
into  Porto  Rico  from  the  United  States,  or  coming  into  the 
United  States  from  Porto  Rico,  should  cease  in  any  event  on 
March  1, 1902,  and  sooner  if  the  legislative  assembly  of  Porto  Rico 
should  enact  and  put  into  operation  a  system  of  local  taxation  to 
meet  the  necessities  of  the  government  established  by  that  act. 

The  system  of  duties,  temporarily  established  by  that  act  dur- 
ing the  transition  period,  was  within  the  authority  of  Congress 
under  the  Constitution  of  the  United  States. 

Fuller,  C.  J.  (with  whom  concurred  Harlan,^  Brewer,  and 
Peckham,  J  J.),  dissenting.  .  .  . 

The  majority  widely  differ  in  the  reasoning  by  which  the  con- 
clusion is  reached,  although  there  seems  to  be  concurrence  in  the 
view  that  Porto  Rico  belongs  to  the  United  States,  but  neverthe- 
less, and  notwithstanding  the  act  of  Congress,  is  not  a  part  of 
the  United  States,  subject  to  the  provisions  of  the  Constitution 
in  respect  of  the  levy  of  taxes,  duties,  imposts  and  excises.  .  .  . 

This  act  on  its  face  does  not  comply  with  the  rule  of  uniformity 
and  that  fact  is  admitted.  .  .  . 

No  satisfactory  ground  has  been  suggested  for  restricting  the 
words  "  throughout  the  United  States,"  as  qualifying  the  power 
to  impose  duties,  to  the  States,  and  that  conclusion  is  the  more 
to  be  avoided  when  we  reflect  that  it  rests,  in  the  last  analysis, 
on  the  assertion  of  the  possession  by  Congress  of  unlimited  power 
over  the  territories. 

The  government  of  the  United  States  is  the  government  or- 
dained by  the  Constitution,  and  possesses  the  powers  conferred 
by  the  Constitution.  ... 

^  Besides  concurring  in  this  dissenting  opinion,  Harlan,  J.,  gave  a  separate 
opinion,  which  has  not  been  reprinted.  —  Ed. 


242  DISTRICT   OF   COLUMBIA,    ETC. 

The  powers  delegated  by  the  people  to  their  agents  are  not 
enlarged  by  the  expansion  of  the  domain  within  which  they  are 
exercised.  When  the  restriction  on  the  exercise  of  a  particular 
power  by  a  particular  agent  is  ascertained,  that  is  an  end  of  the 
question.  .  .  . 

The  prohibitory  clauses  of  the  Constitution  are  many,  and 
they  have  been  repeatedly  given  effect  by  this  court  in  respect 
of  the  Territories  and  the  District  of  Columbia.  .  .  . 

Many  of  the  later  cases  were  brought  from  territories  over 
which  Congress  had  professed  to  "  extend  the  Constitution,"  or 
from  the  District  after  similar  provision,  but  the  decisions  did 
not  rest  upon  the  view  that  the  restrictions  on  Congress  were 
self-imposed,  and  might  be  withdrawn  at  the  pleasure  of  that 
body.^  .  .  . 

The  power  of  the  United  States  to  acquire  territory  by  con- 
quest, by  treaty,  or  by  discovery  and  occupation,  is  not  disputed, 
nor  is  the  proposition  that  in  all  international  relations,  inter- 
ests, and  responsibilities  the  United  States  is  a  separate,  inde- 
pendent, and  sovereign  nation;  but  it  does  not  derive  its  powers 
from  international  law,  which,  though  a  part  of  our  municipal 
law,  is  not  a  part  of  the  organic  law  of  the  land.  The  source 
of  national  power  in  this  country  is  the  Constitution  of  the 
United  States;  and  the  government,  as  to  our  internal  affairs, 
possesses  no  inherent  sovereign  power  not  derived  from  that  in- 
strument, and  inconsistent  with  its  letter  and  spirit. 

Doubtless  the  subjects  of  the  former  sovereign  are  brought 
by  the  transfer  under  the  protection  of  the  acquiring  power, 
and  are  so  far  forth  impressed  with  its  nationality,  but  it  does  not 
follow  that  they  necessarily  acquire  the  full  status  of  citizens.  .  .  . 

Great  stress  is  thrown  upon  the  word  "  incorporation,"  as  if 
possessed  of  some  occult  meaning,  but  I  take  it  that  the  act 
under  consideration  made  Porto  Rico,  whatever  its  situation 
before,  an  organized  territory  of  the  United  States.  Being 
such,  and  the  act  undertaking  to  impose  duties  by  virtue  of 
clause  one  of  section  8,  how  is  it  that  the  rule  which  qualifies 
the  power  does  not  apply  to  its  exercise  in  respect  of  commerce 
with  that  territory  ?  .  .  . 

1  Here  were  discussed  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1  (1899); 
Bauman  v.  Ross,  167  U.  S.  548  (1897);  Callan  v.  Wilson,  ante,  p.  210  (1888); 
Thompson  v.  Utah,  170  U.  S.  343  (1898);  American  Insurance  Co.  v.  Canter, 
ante,  p.  191  (1828),  and  other  cases.  —  Ed. 


DOWNES    V.    BIDWELL.  243 

The  concurring  opinion  recognizes  the  fact  that  Congress,  in 
deahng  with  the  people  of  new  territories  or  possessions,  is  bound 
to  respect  the  fundamental  guarantees  of  life,  liberty,  and  prop- 
erty, but  assumes  that  Congress  is  not  bound,  in  those  territories 
or  possessions,  to  follow  the  rules  of  taxation  prescribed  by  the 
Constitution.  And  yet  the  power  to  tax  involves  the  power 
to  destroy,  and  the  levy  of  duties  touches  all  our  people  in  all 
places  under  the  jurisdiction  of  the  government. 

The  logical  result  is  that  Congress  may  prohibit  commerce 
altogether  between  the  States  and  territories,  and  may  prescribe 
one  rule  of  taxation  in  one  territory,  and  a  different  rule  in 
another. 

That  theory  assumes  that  the  Constitution  created  a  govern- 
ment empowered  to  acquire  countries  throughout  the  world  to 
be  governed  by  different  rules  than  those  obtaining  in  the  orig- 
inal States  and  territories,  and  substitutes  for  the  present  sys- 
tem of  repubhcan  government,  a  system  of  domination  over 
distant  provinces  in  the  exercise  of  unrestricted  power. 

In  our  judgment,  so  much  of  the  Porto  Rican  act  as  author- 
ized the  imposition  of  these  duties  is  invalid,  and  plaintiffs  were 
entitled  to  recover. 

Some  argument  was  made  as  to  general  consequences  appre- 
hended to  flow  from  this  result,  but  the  language  of  the  Con- 
stitution is  too  plain  and  unambiguous  to  permit  its  meaning 
to  be  thus  influenced.  .  .  .^ 

1  Some  of  these  so-called  Insular  Cases  dealt  with  statutory  construction 
and  others  dealt  with  constitutionaUty.  De  Lima  v.  Bidwell,  182  U.  S.  1 
(1901),  and  Dooley  v.  United  States,  182  U.  S.  222  (1901),  held,  respectively, 
that  the  tariff  act  of  1897  did  not,  after  the  cession  of  Porto  Rico,  continue  to 
apply  to  shipments  from  Porto  Rico  to  the  United  States  or  to  shipments  from 
the  United  States  to  Porto  Rico,  that  island  having  ceased  to  be  included 
among  "  foreign  countries  "  within  the  meaning  of  the  act;  and  Fourteen 
Diamond  Rings  v.  United  States,  183  U.  S.  176  (1901),  apphed  the  same 
doctrine  to  shipments  to  the  United  States  from  the  Philippines.  On  the 
other  hand,  Dooley  v.  United  States,  183  U.  S.  151  (1901),  dealt  with  con- 
stitutionality, upholding  new  statutory  duties  on  shipments  from  the  United 
States  to  Porto  Rico,  the  island  not  having  been  incorporated  into  the  United 
States  and  not  having  been  brought  thus  within  the  constitutional  provisions 
requiring  duties  to  be  uniform  throughout  the  United  States  and  forbidding 
duties  on  goods  exported  from  any  State. 

See  Gonzales  v.  WiUiams,  192  U.  S.  1  (1904)  —  citizens  of  Porto  Rico  not 
"  ahens  "  within  the  meaning  of  the  immigration  act  of  March  3,  1891. 

See  also  Faber  v.  United  States,  221  U.  S.  649  (1911)  —  PhiUppine  Islands 
not  "  other  countries  "  within  the  meaning  of  the  commercial  convention  of 
1903  with  Cuba.  —  Ed. 


244  DISTRICT   OF   COLUMBIA,    ETC. 

HAWAII  V.   MANKICHI. 
Supreme  Court  of  the  United  States.     1903. 

[190  United  States,  197.]  ^ 

Appeal  from  the  District  Court  of  the  United  States  for  the 
Territory  of  Hawaii. 

This  was  a  petition  for  a  writ  of  habeas  corpus  by  a  person 
imprisoned  after  conviction  of  manslaughter  by  verdict  of  only 
nine  out  of  twelve  jurors  proceeding  under  an  indictment,  not 
found  by  a  grand  jury,  but  in  the  form  of  an  information  filed  by 
the  Attorney  General  and  indorsed  "  a  true  bill  found  this  fourth 
day  of  May,  A.  D.  1899.  A.  Perry,  First  Judge  of  the  Circuit 
Court." 

The  Territory  appealed  from  an  order  discharging  the  prisoner. 

Dole,  Attorney  General  of  Hawaii,  and  Richards,  Solicitor  Gen- 
eral of  the  United  States,  for  appellant;  and  F.  R.  Coudert,  Jr., 
and  others,  contra. 

Brown,  J.,    ...  delivered  the  opinion  of  the  court.  .  .  . 

By  a  joint  resolution  adopted  by  Congress,  July  7,  1898,  30 
Stat.  750,  known  as  the  Newlands  resolution,  and  with  the  con- 
sent of  the  Republic  of  Hawaii,  signified  in  the  manner  provided 
in  its  constitution,  the  Hawaiian  Islands,  and  their  dependencies, 
were  annexed  "  as  a  part  of  the  territory  of  the  United  States, 
and  subject  to  the  sovereign  dominion  thereof,"  with  the  follow- 
ing condition:  "The  municipal  legislation  of  the  Hawaiian 
Islands,  not  enacted  for  the  fulfillment  of  the  treaties  so  ex- 
tinguished, and  not  inconsistent  with  this  joint  resolution  nor 
contrary  to  the  Constitution  of  the  United  States  nor  to  any 
existing  treaty  of  the  United  States,  shall  remain  in  force  until  the 
Congress  of  the  United  States  shall  otherwise  determine."  .  .  . 
The  formal  transfer  was  not  made  until  August  12,  when,  at 
noon  of  that  day,  the  American  flag  was  raised  over  the  govern- 
ment house,  and  the  islands  ceded  with  appropriate  ceremonies 
to  a  representative  of  the  United  States.  Under  the  conditions 
named  in  this  resolution  the  Hawaiian  Islands  remained  under 
the  name  of  the  "  Republic  of  Hawaii  "  until  June  14,  1900, 
when  they  were  formally  incorporated  by  act  of  Congress  under 
the  name  of  the  "  Territory  of  Hawaii."  31  Stat.  141.  By 
this  act  the  Constitution  was  formally  extended  to  these  islands, 

^  The  statement  has  not  been  reprinted.  —  Ed. 


HAWAII    V.    MANKICHI.  245 

sec.  5,  and  special  provisions  made  for  empanelling  grand  juries 
and  for  unam'mous  verdicts  of  petty  juries.     Sec.  83. 

The  question  is  whether,  in  continuing  the  municipal  legis- 
lation of  the  islands  not  contrary  to  the  Constitution  of  the  United 
States,  it  was  intended  to  abohsh  at  once  the  criminal  procedure 
theretofore  in  force  upon  the  islands,  and  to  substitute  immedi- 
ately and  without  new  legislation  the  common  law  proceedings 
by  grand  and  petit  jury,  which  had  been  held  applicable  to  other 
organized  Territories,  Webster  v.  Reid,  11  How.  437;  American 
PubHshing  Co.  v.  Fisher,  166  U.  S.  464;  Thompson  v.  Utah,  170 
U.  S.  343,  though  we  have  also  held  that  the  States,  when  once 
admitted  as  such,  may  dispense  with  grand  juries,  Hurtado  v. 
California,  110  U.  S.  516;  and  perhaps  allow  verdicts  to  be 
rendered  by  less  than  a  unanimous  vote.  American  Publishing 
Co.  V.  Fisher,  166  U.  S.  464;  Thompson  v.  Utah,  170  U.  S.  343. 

In  fixing  upon  the  proper  construction  to  be  given  to  this  reso- 
lution, it  is  important  to  bear  in  mind  the  history  and  condition 
of  the  islands  prior  to  their  annexation  by  Congress.  Since  1847 
they  had  enjoyed  the  blessings  of  a  civilized  government,  and 
a  system  of  jurisprudence  modelled  largely  upon  the  common 
law  of  England  and  the  United  States.  Though  lying  in  the 
tropical  zone,  the  salubrity  of  their  climate  and  the  fertility  of 
their  soil  had  attracted  thither  large  numbers  of  people  from 
Europe  and  America,  who  brought  with  them  political  ideas  and 
traditions  which,  about  sixty  years  ago,  found  expression  in  the 
adoption  of  a  code  of  laws  appropriate  to  their  new  conditions. 
Churches  were  founded,  schools  opened,  courts  of  justice  estab- 
lished, and  civil  and  criminal  laws  administered  upon  substan- 
tially the  same  principles  which  prevailed  in  the  two  countries 
from  which  most  of  the  immigrants  had  come.  Taking  the  lead, 
however,  in  a  change  which  has  since  been  adopted  by  several 
of  the  United  States,  no  provision  was  made  for  grand  juries, 
and  criminals  were  prosecuted  upon  indictments  found  by  judges. 
By  a  law  passed  in  1847,  the  number  of  a  jury  was  fixed  at  twelve, 
but  a  verdict  might  be  rendered  upon  the  agreement  of  nine 
jurors.  The  question  involved  in  this  case  is  whether  it  was 
intended  that  this  practice  should  be  instantly  changed,  and  the 
criminal  procedure  embodied  in  the  Fifth  and  Sixth  Amend- 
ments to  the  Constitution  be  adopted  as  of  August  12,  1898, 
when  the  Hawaiian  flag  was  hauled  down  and  the  American  flag 
hoisted  in  its  place. 


246  DISTRICT   OF   COLUMBIA,    ETC. 

If  the  words  of  the  Newlands  resolution,  adopting  the  mu- 
nicipal legislation  of  Hawaii  not  contrary  to  the  Constitution  of 
the  United  States,  be  literally  applied,  the  petitioner  is  entitled 
to  his  discharge,  since  that  instrument  expressly  requires.  Amend- 
ment 5,  that  "  no  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury;  "  and,  Amendment  6,  that  "  in  all  crimi- 
nal prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed."  But  there  is 
another  question  underlying  this  and  all  other  rules  for  the  in- 
terpretation of  statutes,  and  that  is,  what  was  the  intention  of 
the  legislative  body  ?  .  .  . 

Is  there  any  room  for  construction  in  this  case,  or,  are  the 
words  of  the  resolution  so  plain  that  construction  is  impossible  ? 
There  are  many  reasons  which  induce  us  to  hold  that  the  act 
was  not  intended  to  interfere  with  the  existing  practice  when 
such  interference  would  result  in  imperiling  the  peace  and  good 
order  of  the  islands.  The  main  objects  of  the  resolution  were, 
1st,  to  accept  the  cession  of  the  islands  theretofore  made  by  the 
Republic  of  Hawaii,  and  to  annex  the  same  "  as  a  part  of  the 
territory  of  the  United  States  and  subject  to  the  sovereign  do- 
minion thereof  ";  2d,  to  aboUsh  all  existing  treaties  with  various 
nations,  and  to  recognize  only  treaties  between  the  United  States 
and  such  foreign  nations;  3d,  to  continue  the  existing  laws  and 
customs  regulations,  so  far  as  they  were  not  inconsistent  with  the 
resolution,  or  contrary  to  the  Constitution,  until  Congress  should 
otherwise  determine.  From  the  terms  of  this  resolution  it  is 
evident-  that  it  was  intended  to  be  merely  temporary  and  pro- 
visional; that  no  change  in  the  government  was  contemplated, 
and  that  until  further  legislation  the  Republic  of  Hawaii  con- 
tinued in  existence.  Even  its  name  was  not  changed  until  1900, 
when  the  "  Territory  of  Hawaii  "  was  organized.  The  laws  of 
the  United  States  were  not  extended  over  the  islands  until  the 
organic  act  was  passed  on  April  30,  1900,  when,  so  careful  was 
Congress  not  to  disturb  the  existing  condition  of  things  any 
further  than  was  necessary,  it  was  provided,  sec.  5,  that  only 
"  the  laws  of  the  United  States,  which  are  not  locally  inappli- 
cable, shall  have  the  same  force  and  effect  within  the  said  Terri- 
tory as  elsewhere  in  the  United  States."  .  .  . 

Of  course,  under  the  Newlands  resolution,  any  new  legis- 
lation must  conform  to  the  Constitution  of  the  United  States, 


HAWAII   V.    MANKICHI.  247 

but  how  far  the  exceptions  to  the  existing  municipal  legislation 
were  intended  to  abolish  existing  laws,  must  depend  somewhat 
upon  circumstances.  Where  the  immediate  apphcation  of  the 
Constitution  required  no  new  legislation  to  take  the  place  of 
that  which  the  Constitution  abolished,  it  may  be  well  held  to 
have  taken  immediate  effect;  but  where  the  application  of  a  pro- 
cedure hitherto  well  known  and  acquiesced  in,  left  nothing  to 
take  its  place,  without  new  legislation,  the  result  might  be  so 
disastrous  that  we  might  well  say  that  it  could  not  have  been 
within  the  contemplation  of  Congress.  .  .  . 

If  the  negative  words  of  the  resolution,  "  nor  contrary  to  the 
Constitution  of  the  United  States,"  be  construed  as  imposing 
upon  the  islands  every  provision  of  a  Constitution,  which  must 
have  been  unfamiliar  to  a  large  number  of  their  inhabitants, 
and  for  which  no  previous  preparation  had  been  made,  the  con- 
sequences in  this  particular  connection  would  be  that  every 
criminal  in  the  Hawaiian  Islands  convicted  of  an  infamous  offence 
between  August  12,  1898,  and  June  14, 1900,  when  the  act  organiz- 
ing the  territorial  government  took  effect,  must  be  set  at  large; 
and  every  verdict  in  a  civil  case  rendered  by  less  than  a  unani- 
mous jury  held  for  naught.  Surely  such  a  result  could  not  have 
been  within  the  contemplation  of  Congress.  .  .  . 

Inasmuch  as  we  are  of  opinion  that  the  status  of  the  islands 
and  the  powers  of  their  provisional  government  were  measured 
by  the  Newlands  resolution,  and  the  case  has  been  argued  upon 
that  theory,  we  have  not  deemed  it  necessary  to  consider  what 
would  have  been  its  position  had  the  important  words  "  nor 
contrary  to  the  Constitution  of  the  United  States  "  been  omit- 
ted, or  to  reconsider  the  questions  which  arose  in  the  Insular 
Tariff  cases  regarding  the  power  of  Congress  to  annex  territory 
without  at  the  same  time  extending  the  Constitution  over  it. 
Of  course,  for  the  reasons  already  stated,  the  questions  involved 
in  this  case  could  arise  only  from  such  as  occurred  between  the 
taking  effect  of  the  joint  resolution  of  July  7,  1898,  and  the  act 
of  April  30,  1900,  establishing  the  territorial  government. 

The  decree  of  the  District  Court  for  the  Territory  of  Hawaii  must 

be  reversed,  and  the  case  remanded  to  that  court  with  instructions 

to  dismiss  the  petition.^ 

1  Ace.:  Dorr  v.  United  States,  195  U.  S.  138  (1904),  aa  to  Philippine  Is- 
lands. —  Ed. 


248  DISTRICT   OF   COLUMBIA,    ETC. 

White,  J.,  and  McKenna,  J.,  concurring. 

The  court  in  its  opinion  disposes  of  the  case  solely  by  a  con- 
struction of  the  act  of  Congress.  Conceding,  arguendo,  that 
such  view  is  wholly  adequate  to  decide  the  cause,  I  concur  in 
the  meaning  of  the  act  as  expounded  in  the  opinion  of  the  court, 
and  in  the  main  with  the  reasoning  by  which  that  interpreta- 
tion is  elucidated.  I  prefer,  however,  to  place  my  concurrence 
in  the  judgment  upon  an  additional  ground  which  seems  to  be 
more  fundamental.  That  ground  is  this :  That  as  a  consequence 
of  the  relation  which  the  Hawaiian  Islands  occupied  towards  the 
United  States,  growing  out  of  the  resolution  of  annexation,  the 
provisions  of  the  Fifth  and  Sixth  Amendments  of  the  Constitu- 
tion concerning  grand  and  petit  juries  were  not  applicable  to 
that  territory,  because,  whilst  the  effect  of  the  resolution  of 
annexation  was  to  acquire  the  islands  and  subject  them  to  the 
sovereignty  of  the  United  States,  neither  the  terms  of  the  resolu- 
tion nor  the  situation  which  arose  from  it  served  to  incorporate 
the  Hawaiian  Islands  into  the  United  States  and  make  them  an 
integral  part  thereof.  In  other  words,  in  my  opinion,  the  case 
is  controlled  by  the  decision  in  Downes  v.  Bidwell,  182  U.  S.  244. 

The  resolution  of  Congress  annexing  the  islands,  it  seems  to 
me,  makes  the  conclusion  just  stated  quite  clear,  and  manifests 
that  it  was  not  intended  to  incorporate  the  islands  eo  instanti,  but 
on  the  contrary,  that  the  purpose  was,  whilst  acquiring  them, 
to  leave  the  permanent  relation  which  they  were  to  bear  to  the 
Government  of  the  United  States  to  await  the  subsequent  de- 
termination of  Congress.  By  the  resolution  the  islands  were 
annexed,  not  absolutely,  but  merely  "  as  a  part  of  the  terri- 
tory of  the  United  States,"  and  were  simply  declared  to  be  sub- 
ject to  its  sovereignty.  .  .  . 

Fuller,  C.  J.,  with  whom  concurred  Harlan,  Brewer,  and 
Peckham,  JJ.,  dissenting.  .  .  . 


BINNS   V.    UNITED    STATES.  249 

BINNS  V.  UNITED  STATES. 

Supreme  Court  of  the  United  States.     1904. 

[194  United  States,  486.]  i 

Error  to  the  District  Court  of  the  United  States  for  the  Dis- 
trict of  Alaska. 

The  plaintiff  in  error  was  prosecuted  and  convicted  under  an 
act  of  Congress  which  made  it  a  misdemeanor  to  do  business  in 
Alaska  as  a  transfer  company  without  paying  fifty  dollars  annu- 
ally for  a  license;  and  thereupon  the  conviction  was  brought  to 
the  Supreme  Court  by  writ  of  error,  the  question  being  whether 
there  was  conflict  between  the  statute  and  the  Constitution  of 
the  United  States,  Art.  I,  sect.  8,  clause  1. 

J.  C.  Campbell  and  W.  H.  Melson,  for  plaintiff  in  error;  and 
Purdy,  Assistant  Attorney  General,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  contention  of  plaintiff  in  error  is  that  the  license  tax  is  an 
excise,  that  it  is  laid  and  collected  "  to  pay  the  debts  and  pro- 
vide for  the  common  defence  and  general  welfare  of  the  United 
States,"  because  by  section  463  it  is  provided  that  "  all  moneys 
received  for  licenses  .  .  .  under  this  act  shall  ...  be  covered 
into  the  Treasury  of  the  United  States,"  that  it  is  imposed  only 
in  Alaska,  and  is  not  "  uniform  throughout  the  United  States." 

It  is  unnecessary  to  consider  the  decisions  in  the  Insular  cases, 
for,  as  said  by  Mr.  Justice  White  in  his  concurring  opinion  in 
Downes  v.  Bidwell,  182  U.  S.  244,  335:  "Without  referring  in 
detail  to  the  acquisition  from  Russia  of  Alaska,  it  suffices  to  say 
that  that  treaty  also  contained  provisions  for  incorporation  and 
was  acted  upon; "  and  by  Mr.  Justice  Gray,  in  his  concurring 
opinion:  "The  cases  now  before  the  court  do  not  touch  the 
authority  of  the  United  States  over  the  Territories,  in  the  strict 
and  technical  sense,  being  those  which  lie  within  the  United 
States,  as  bounded  by  the  Atlantic  and  Pacific  Oceans,  the  Do- 
minion of  Canada  and  the  Republic  of  Mexico,  and  the  Terri- 
tories of  Alaska  and  Hawaii;  but  they  relate  to  territory,  in  the 
broader  sense,  acquired  by  the  United  States  by  war  with  a 
foreign  State." 

It  had  been  theretofore  held  by  this  court  in  Steamer  Co- 
quitlam  v.  United  States,  163  U.  S.  346,  352,  that  "Alaska  is 

^  The  statement  has  not  been  reprinted.  —  Ed. 


250  DISTRICT   OF   COLUMBIA,    ETC. 

one  of  the  Territories  of  the  United  States.  It  was  so  desig- 
nated in  that  order  (the  order  assigning  the  Territory  to  the 
Ninth  Judicial  Circuit)  and  has  always  been  so  regarded.  And 
the  court  established  by  the  act  of  1884  is  the  court  of  last  resort 
within  the  limits  of  that  Territory."  Nor  can  it  be  doubted  that 
it  is  an  organized  Territory,  for  the  act  of  May  17,  1884,  23  Stat. 
24,  entitled  "  An  act  providing  a  civil  government  for  Alaska," 
provided:  "That  the  territory  ceded  to  the  United  States  by 
Russia  by  the  treaty  of  March  thirtieth,  eighteen  hundred  and 
sixty-seven,  and  known  as  Alaska,  shall  constitute  a  civil  and 
judicial  district,  the  government  of  which  shall  be  organized  and 
administered  as  hereinafter  provided."  See  also  31  Stat.  321, 
sec.  1. 

We  shall  assume  that  the  purpose  of  the  license  fees  required 
by  section  460  is  the  collection  of  revenue,  and  that  the  license 
fees  are  excises  within  the  constitutional  sense  of  the  terms. 
Nevertheless  we  are  of  opinion  that  they  are  to  be  regarded  as 
local  taxes  imposed  for  the  purpose  of  raising  funds  to  support 
the  administration  of  local  government  in  Alaska. 

It  must  be  remembered  that  Congress,  in  the  government 
of  the  Territories  as  well  as  of  the  District  of  Columbia,  has 
plenary  power,  save  as  controlled  by  the  provisions  of  the  Con- 
stitution, that  the  form  of  government  it  shall  establish  is  not 
prescribed,  and  may  not  necessarily  be  the  same  in  all  the  Terri- 
tories. .  .  .  For  Alaska,  Congress  .  .  .  has  provided  no  legis- 
lative body  but  only  executive  and  judicial  officers.  It  has 
enacted  a  penal  and  civil  code.  Having  created  no  legislative 
body  and  provided  for  no  local  legislation  in  respect  to  the 
matter  'of  revenue,  it  has  established  a  revenue  system  of  its 
own,  applicable  alone  to  that  Territory.  Instead  of  raising  rev- 
enue by  direct  taxation  upon  property,  it  has,  as  it  may  rightfully 
do,  provided  for  that  revenue  by  means  of  license  taxes. 

In  reference  to  the  power  of  Congress  reference  may  be  had 
to  Gibbons  v.  District  of  Columbia,  116  U.  S.  404,  in  which  it  was 
held  that  "it  is  within  the  constitutional  power  of  Congress, 
acting  as  the  local  legislature  of  the  District  of  Columbia,  to 
tax  different  classes  of  property  within  the  District  at  different 
rates  ";  and  further,  after  referring  to  the  case  of  Loughborough 
V.  Blake,  5  Wheat.  317,  it  was  said: 

"  The  power  of  Congress,  legislating  as  a  local  legislature  for 
the  District,  to  levy  taxes  for  district  purposes  only,  in  like  manner 
as  the  legislature  of  a  State  may  tax  the  people  of  a  State  for 


BINNS  V.    UNITED  STATES.  251 

state  purposes,  was  expressly  admitted,  and  has  never  since  been 
doubted.  5  Wheat.  318;  Welch  v.  Cook,  97  U.  S.  541;  Mattingly 
V.  District  of  Columbia,  97  U.  S.  687.  In  the  exercise  of  this 
power  Congress,  like  any  state  legislature  unrestricted  by  con- 
stitutional provisions,  may  at  its  discretion  wholly  exempt  certain 
classes  of  property  from  taxation,  or  may  tax  them  at  a  lower 
rate  than  other  property." 

In  view  of  this  decision  it  would  not  be  open  to  doubt  that, 
if  the  act  had  provided  for  a  local  treasurer  to  whom  these  local 
taxes  should  be  paid  and  directed  that  the  proceeds  be  used 
solely  in  payment  of  the  necessary  expenses  of  the  government  of 
Alaska,  its  constitutionality  would  be  clear,  but  the  contention 
is  that  the  statute  requires  that  the  proceeds  of  these  hcenses 
shall  be  paid  into  the  Treasury  of  the  United  States,  from  which, 
of  course,  they  can  only  be  taken  under  an  act  of  Congress  making 
specific  appropriation.  In  fact,  all  the  expenses  of  the  Terri- 
tory are,  in  pursuance  of  statute,  paid  directly  out  of  the  United 
States  Treasury.  Act  of  June  6,  1900,  Title  I,  sections  2  and  10, 
31  Stat.  322,  325;  Act  of  March  3,  1901,  31  Stat.  960,  987;  April 
28,  1902,  32  Stat.  120,  147,  and  February  25,  1903,  32  Stat.  854, 
882.  True,  there  are  some  special  provisions  for  revenues  and 
their  application.  Thus,  the  fees  for  issuing  certificates  of  ad- 
mission to  the  bar  and  for  commissions  to  notaries  public  are  to 
be  retained  by  the  secretary  of  the  district  and  "  kept  in  a  fund 
to  be  known  as  the  District  Historical  Library  Fund  "  and  de- 
signed for  "  establishing  and  maintaining  the  district  historical 
library  and  museum,"  act  of  June  6,  1900,  Title  I,  sec.  32,  31  Stat. 
333,  and  municipal  corporations  are  authorized  to  impose  certain 
taxes  for  local  purposes.  Title  III,  sec.  201,  31  Stat.  521.  By 
section  203,  fifty  per  cent  of  all  the  license  moneys  collected  within 
the  limits  of  such  corporations  are  to  be  paid  to  their  treasurers 
to  be  used  for  school  purposes.  By  subsequent  legislation,  31 
Stat.  1438,  it  is  provided  that  if  the  amount  thus  paid  is  not  all 
required  for  school  purposes  the  District  Court  may  authorize 
the  expenditure  of  the  surplus  for  any  municipal  purpose.  And 
by  the  same  statute  it  is  also  provided  that  fifty  per  cent  of  all 
license  moneys  collected  outside  municipal  corporations  and 
covered  into  the  Treasury  of  the  United  States  shall  be  set  aside 
to  be  expended  for  school  purposes  outside  the  municipalities. 
By  still  later  legislation  (although  that  was  enacted  after  the 
commencement  of  this  prosecution,  32  Stat.  946),  the  entire 
proceeds  of  license  taxes  within  the  limits  of  municipal  corpora- 


252  DISTRICT   OF   COLUMBIA,    ETC. 

tions  are  to  be  paid  to  the  treasurer  of  the  corporation,  for  school 
and  municipal  purposes. 

But  outside  of  these  special  matters  there  are  no  provisions 
for  collecting  revenue  within  the  Territory  for  the  expenses 
of  the  territorial  government  other  than  these  license  taxes  and 
charges  of  a  similar  nature.  .  .  . 

The  question  may  then  be  stated  in  this  form:  Congress  has 
undoubtedly  the  power  by  direct  legislation  to  impose  these 
license  taxes  upon  the  residents  of  Alaska,  providing  that  when 
collected  they  are  paid  to  a  treasurer  of  the  Territory  and  dis- 
bursed by  him  solely  for  the  needs  of  the  Territory.  Does  the 
fact  that  they  are  ordered  to  be  paid  into  the  Treasury  of  the 
United  States  and  not  specifically  appropriated  to  the  expenses 
of  the  Territory,  when  the  sum  total  of  these  and  all  other  revenues 
from  the  Territory  does  not  equal  the  cost  and  expense  of  main- 
taining its  government,  make  them  unconstitutional  ?  In 
other  words,  if,  under  any  circumstances  Congress  has  the  power 
to  levy  and  collect  these  taxes  for  the  expenses  of  the  territorial 
government,  is  it  essential  to  their  validity  that  the  proceeds 
therefrom  be  kept  constantly  separate  from  all  other  moneys 
and  specifically  and  solely  appropriated  to  the  interests  of  the 
Territory  ?  We  do  not  think  that  the  constitutional  power  of 
Congress  in  this  respect  depends  entirely  on  the  mode  of  its 
exercise.  If  it  satisfactorily  appears  that  the  purpose  of  these 
license  taxes  is  to  raise  revenue  for  use  in  Alaska,  and  that  the 
total  revenues  derived  from  Alaska  are  inadequate  to  the  ex- 
penses of  the  Territory,  so  that  Congress  has  to  draw  upon  the 
general  funds  of  the  Nation,  the  taxes  must  be  held  valid.  That 
the  purpose  of  these  taxes  was  to  raise  revenue  in  Alaska  for 
Alaska  is  obvious.  They  were  authorized  in  statutes  dealing 
solely  with  Alaska.  There  is  no  provision  for  a  direct  prop- 
erty tax  to  be  collected  in  Alaska  for  the  general  expenses  of 
the  Territory.  The  entire  moneys  collected  from  these  license 
taxes  and  otherwise  from  Alaska  are  inadequate  for  the  expenses 
of  that  Territory.  So  far  as  we  may  properly  refer  to  the  pro- 
ceedings in  Congress,  they  affirm  that  these  license  taxes  are 
charges  upon  the  citizens  of  Alaska  for  the  support  of  its  govern- 
ment. While  it  is  generally  true  that  debates  in  Congress  are 
not  appropriate  sources  of  information  from  which  to  discover 
the  meaning  of  the  language  of  a  statute  passed  by  that  body, 
United  States  v.  Freight  Association,  166  U.  S.  290,  318,  yet  it 
is  also  true  that  we  have  examined  the  reports  of  the  committees 


BINNS   V.    UNITED    STATES.  253 

of  either  body  with  a  view  of  determining  the  scope  of  statutes 
passed  on  the  strength  of  such  reports.  Holy  Trinity  Church 
V.  United  States,  143  U.  S.  457,  464.  When  Sections  461  and  462 
were  under  consideration  in  the  Senate  the  chairman  of  the 
Committee  on  Territories,  in  response  to  inquiries  from  Senators, 
made  these  rephes: 

"  The  Committee  on  Territories  have  thoroughly  investigated 
the  condition  of  affairs  in  Alaska  and  have  prepared  certain 
licenses  which  in  their  judgment  will  create  a  revenue  suffi- 
cient to  defray  all  the  expenses  of  the  government  of  the  Terri- 
tory of  Alaska.  .  .  .  They  are  licenses  peculiar  to  the  condition 
of  affairs  in  the  Territory  of  Alaska  on  certain  lines  of  goods, 
articles  of  commerce,  etc.,  which,  in  the  judgment  of  the  com- 
mittee, should  bear  a  license,  inasmuch  as  there  is  no  taxation 
whatever  in  Alaska.  Not  one  dollar  of  taxes  is  raised  on  any 
kind  of  property  there.  It  is  therefore  necessary  to  raise  revenue 
of  some  kind,  and  in  the  judgment  of  the  Committee  on  Terri- 
tories, after  consultation  with  prominent  citizens  of  the  Territory 
of  Alaska,  including  the  governor  and  several  other  officers, 
this  code  or  list  of  licenses  was  prepared  by  the  committee.  .  .  ." 
Vol.  32,  Congressional  Record,  Part  III,  page  2235.  .  .  . 

In  order  to  avoid  any  misapprehension  we  may  add  that  this 
opinion  must  not  be  extended  to  any  case,  if  one  should  arise, 
in  which  it  is  apparent  that  Congress  is,  by  some  special  system 
of  license  taxes,  seeking  to  obtain  from  a  Territory  of  the  United 
States  revenue  for  the  benefit  of  the  nation  as  distinguished  from 
that  necessary  for  the  support  of  the  territorial  government. 

We  see  no  error  in  the  record,  and  the  judgment  is 

Affirmed. 

Harlan,  J.,  took  no  part  in  the  decision  of  this  case. 


254  DISTRICT   OF    COLUMBIA,    ETC. 

RASSMUSSEN  v.   UNITED   STATES. 
Supreme  Court  of  the  United  States.     1905. 

[197  United  States,  516.] 

Error  to  the  District  Court  of  the  United  States  for  the  Dis- 
trict of  Alaska. 

The  facts  are  stated  in  the  opinion. 

R.  W.  Jennings  and  W.  E.  Crews,  for  plaintiff  in  error;  and 
Robh,  Assistant  Attorney  General,  contra. 

White,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  for  violating  section  127 
of  the  Alaska  Code,  prohibiting  the  keeping  of  a  disreputable 
house  and  punishing  the  offense  by  a  fine  or  imprisonment  in 
the  county  jail. 

As  stated  in  the  bill  of  exceptions,  when  the  case  was  called 
the  court  announced  "  that  the  cause  would  be  tried  before  a 
jury  composed  of  six  jurors,"  in  accordance  with  section  171 
of  the  Code  for  Alaska  adopted  by  Congress,  wherein,  among 
other  things,  it  was  provided  as  follows  (31  Stat.  321,  359): 
"  That  hereafter  in  trials  for  misdemeanors  six  persons  shall 
constitute  a  legal  jury."  To  this  announcement  by  the  court 
an  exception  was  duly  preserved.  A  jury  of  six  persons  was 
then  empanelled,  when  the  objection  was  renewed  and  a  demand 
made  for  a  common  law  jury,  which  was  refused,  and  an  excep- 
tion was  again  taken. 

To  a  verdict  and  judgment  of  conviction  this  writ  is  prose- 
cuted directly  to  this  court,  reliance  for  a  reversal  being  had  on 
the  violation  of  the  Constitution  alleged  to  have  resulted  from 
the  trial  of  the  case  by  a  jury  of  six  persons  and  upon  other  errors 
of  law  which,  it  is  asserted,  the  court  committed  in  the  course 
of  the  trial. 

At  the  threshold  of  the  case  lies  the  constitutional  question 
whether  Congress  had  power  to  deprive  one  accused  in  Alaska 
of  a  misdemeanor  of  trial  by  a  common  law  jury,  that  is  to  say, 
whether  the  provision  of  the  act  of  Congress  in  question  was 
repugnant  to  the  Sixth  Amendment  to  the  Constitution  of  the 
United  States. 

At  the  bar  the  Government  did  not  deny  that  offenses  of  the 
character  of  the  one  here  prosecuted  could  only  be  tried  by  a 
common  law  jury,  if  the  Sixth  Amendment  governed.  The 
Government,  moreover,  did  not  dispute  the  obvious  and  funda- 


RASSMUSSEN   V.    UNITED   STATES.  255 

mental  truth  that  the  Constitution  of  the  United  States  is  domi- 
nant where  appHcable.  The  vahdity  of  the  provision  in  question 
is  therefore  sought  to  be  sustained  upon  the  proposition  that  the 
Sixth  Amendment  to  the  Constitution  did  not  apply  to  Congress 
in  legislating  for  Alaska.  And  this  rests  upon  two  contentions 
which  we  proceed  separately  to  consider. 

1.  Alaska  was  not  incorporated  into  the  United  States,  and 
therefore  the  Sixth  Amendment  did  not  control  Congress  in  legis- 
lating for  Alaska.  .  .  . 

We  are  brought  then  to  determine  whether  Alaska  has  been 
incorporated  into  the  United  States  as  a  part  thereof,  or  is  simply 
held,  as  the  Philippine  Islands  are  held,  under  the  sovereignty 
of  the  United  States  as  a  possession  or  dependency.  .  .  . 

The  treaty  concerning  Alaska,  instead  of  exhibiting,  as  did 
the  treaty  respecting  the  Philippine  Islands,  the  determination 
to  reserve  the  question  of  the  status  of  the  acquired  territory 
for  ulterior  action  by  Congress,  manifested  a  contrary  inten- 
tion, since  it  is  therein  expressly  declared,  in  Article  3,  that: 

"  The  inhabitants  of  the  ceded  territory  shall  be  admitted 
to  the  enjoyment  of  all  the  rights,  advantages  and  immunities 
of  citizens  of  the  United  States;  and  shall  be  maintained  and 
protected  in  the  free  enjoyment  of  their  liberty,  property  and 
rehgion." 

This  declaration,  although  somewhat  changed  in  phrase- 
ology, is  the  equivalent,  as  pointed  out  in  Downes  v.  Bidwell, 
of  the  formula  employed  from  the  beginning  to  express  the  pur- 
pose to  incorporate  acquired  territory  into  the  United  States, 
especially  in  the  absence  of  other  provisions  showing  an  inten- 
tion to  the  contrary.  .  .  . 

That  Congress,  shortly  following  the  adoption  of  the  treaty 
with  Russia,  clearly  contemplated  the  incorporation  of  Alaska 
into  the  United  States  as  a  part  thereof,  we  think  plainly  results 
from  the  act  of  July  20,  1868,  concerning  internal  revenue  taxa- 
tion, c.  186,  section  107,  15  Stat.  125,  167,  and  the  act  of  July 
27,  1868,  c.  273,  extending  the  laws  of  the  United  States  relating 
to  customs,  commerce  and  navigation  over  Alaska  and  estab- 
lishing a  collection  district  therein.  15  Stat.  240.  And  this  is 
fortified  by  subsequent  action  of  Congress,  which  it  is  unnecessary 
to  refer  to. 

Indeed,  both  before  and  since  the  decision  in  Downes  v.  Bid- 
well  the  status  of  Alaska  as  an  incorporated  Territory  was  and  has 
been  recognized  by  the  action  and  decisions  of  this  court.      By 


256  DISTRICT   OF   COLUMBIA,    ETC. 

the  sixth  section  of  the  judiciary  act  of  March  3,  1891,  26  Stat. 
826,  it  was  made  the  duty  of  this  court  to  assign  the  several 
Territories  of  the  United  States  to  particular  circuits;  and  in 
execution  of  this  law  this  court,  by  an  order  promulgated  May 
11,  1891,  assigned  the  Territory  of  Alaska  to  the  ninth  judicial 
circuit.     Steamer  Coquitlam  v.  United  States,  163  U.  S.  346.  .  .  . 

This  brings  us  to  the  second  proposition,  which  is: 

2.  That  even  if  Alaska  was  incorporated  into  the  United  States, 
as  it  was  not  an  organized  Territory,  therefore  the  provisions  of  the 
Sixth  Amendment  were  not  controlling  on  Congress  when  legislating 
for  Alaska. 

We  do  not  stop  to  demonstrate  from  original  considerations 
the  unsoundness  of  this  contention  and  its  irreconcilable  con- 
flict with  the  essential  principles  upon  which  our  constitutional 
system  of  government  rests.  Nor  do  we  think  it  is  required  to 
point  out  the  inconsistency  which  would  arise  between  various 
provisions  of  the  Constitution  if  the  proposition  was  admitted, 
or  the  extreme  extension  on  the  one  hand  and  the  undue  limita- 
tion on  the  other  of  the  powers  of  Congress  which  would  be 
occasioned  by  conceding  it.  This  is  said,  because,  in  our  opinion, 
the  unsoundness  of  the  proposition  is  conclusively  established 
by  a  long  line  of  decisions.  Webster  v.  Reid,  11  How.  437;  Rey- 
nolds V.  United  States,  98  U.  S.  145;  Callan  v.  Wilson,  127  U.  S. 
540;  American  Pubhshing  Co.  v.  Fisher,  166  U.  S.  464;  Spring- 
ville  V.  Thomas,  166  U.  S.  707;  Thompson  v.  Utah,  170  U.  S.  343; 
Capital  Traction  Co.  v.  Hof,  174  U.  S.  1;  Black  v.  Jackson,  177 
U.  S.  349. 

The  argument  by  which  the  decisive  force  of  the  cases  just 
cited  is  .sought  to  be  escaped  is  that  as  when  the  cases  were  de- 
cided there  was  legislation  of  Congress  extending  the  Constitu- 
tion to  the  District  of  Columbia  or  to  the  particular  territory 
to  which  a  case  may  have  related,  therefore  the  decisions  must 
be  taken  to  have  proceeded  alone  upon  the  statutes  and  not 
upon  the  inherent  application  of  the  provisions  of  the  Fifth, 
Sixth  and  Seventh  Amendments  to  the  District  of  Columbia  or 
to  an  incorporated  Territory.  And,  upon  the  assumption  that 
the  cases  are  distinguishable  from  the  present  one  upon  the 
basis  just  stated,  the  argument  proceeds  to  insist  that  the  Sixth 
Amendment  does  not  apply  to  the  Territory  of  Alaska,  because 
section  1891  of  the  Revised  Statutes  only  extends  the  Constitu- 
tion to  the  organized  Territories,  in  which,  it  is  urged,  Alaska  is 
not  embraced. 


RASSMUSSEN   V.    UNITED    STATES.  257 

Whilst  the  premise  as  to  the  existence  of  legislation  declar- 
ing the  extension  of  the  Constitution  to  the  Territories  with 
which  the  cases  were  respectively  concerned  is  well  founded, 
the  conclusion  drawn  from  that  fact  is  not  justified.  Without 
attempting  to  examine  in  detail  the  opinions  in  the  various 
cases,  in  our  judgment  it  clearly  results  from  them  that  they 
substantially  rested  upon  the  proposition  that  where  territory 
was  a  part  of  the  United  States  the  inhabitants  thereof  were 
entitled  to  the  guarantees  of  the  Fifth,  Sixth  and  Seventh  Amend- 
ments, and  that  the  act  or  acts  of  Congress  purporting  to  extend 
the  Constitution  were  considered  as  declaratory  merely  of  a 
result  which  existed  independently  by  the  inherent  operation  of 
the  Constitution.  It  is  true  that  in  some  of  the  opinions  both 
the  application  of  the  Constitution  and  the  statutory  provisions 
declaring  such  application  were  referred  to,  but  in  others  no 
reference  to  such  statutes  was  made,  and  the  cases  proceeded 
upon  a  line  of  reasoning,  leaving  room  for  no  other  view  than 
that  the  conclusion  of  the  court  was  rested  upon  the  self-operative 
application  of  the  Constitution.  Springville  v.  Thomas,  166 
U.  S.  707;  Thompson  v.  Utah,  170  U.  S.  343;  Capital  Traction 
Co.  V.  Hof,  174  U.  S.  1;  Black  v.  Jackson,  177  U.  S.  349.  .  .  . 

As  it  conclusively  results  from  the  foregoing  considerations 
that  the  Sixth  Amendment  to  the  Constitution  was  applicable 
to  Alaska,  and  as  of  course  being  applicable  it  was  controlling 
upon  Congress  in  legislating  for  Alaska,  it  follows  that  the  pro- 
vision of  the  act  of  Congress  under  consideration  depriving 
persons  accused  of  a  misdemeanor  in  Alaska  of  a  right  to  trial 
by  a  common  law  jury,  was  repugnant  to  the  Constitution  and 
void.  Having  disposed  of  the  constitutional  question,  we  deem 
it  necessary  to  review  the  other  alleged  errors. 

The  judgment  must  therefore  be  reversed  and  the  case  re- 
manded with  directions  to  set  aside  the  verdict  and  grant  a 
new  trial.  And  it  is  so  ordered. 

Harlan,  J.,  concurring.  .  .  . 

Immediately  upon  the  ratification  in  1867  of  the  treaty  by 
which  Alaska  was  acquired  from  Russia,  that  Territory,  as  I 
think,  came  under  the  complete,  sovereign  jurisdiction  and  au- 
thority of  the  United  States,  and,  without  any  formal  action 
on  the  part  of  Congress  in  recognition  or  enforcement  of  the 
treaty,  and  whether  Congress  wished  such  a  result  or  not,  the  in- 
habitants of  that  Territory  became  at  once  entitled  to  the  benefit 


258  DISTRICT    OF    COLUMBIA,    ETC. 

of  all  the  guarantees  found  in  the  Constitution  of  the  United 
States  for  the  protection  of  life,  liberty,  and  property. 

After  such  ratification  no  person  charged  wdth  the  commis- 
sion of  a  crime  against  the  United  States  in  that  Territory  could 
be  legally  tried  therefor  otherwise  than  by  what  this  court  has 
adjudged  to  be  the  jury  of  the  Constitution. 

The  constitutional  requirement  that  "  the  trial  of  all  crimes, 
except  in  cases  of  impeachment,  shall  be  by  jury  "  means,  as 
this  court  has  adjudged,  a  trial  by  the  historical,  common  law 
jury  of  twelve  persons,  and  applies  to  all  crimes  against  the 
United  States  committed  in  any  territory,  however  acquired, 
over  which,  for  purposes  of  government,  the  United  States  bas- 
so vereign  dominion. 

No  tribunal  or  person  can  exercise  authority  involving  life 
or  liberty,  in  any  territory  of  the  United  States,  organized  or 
unorganized,  except  in  harmony  with  the  Constitution. 

Congress  cannot  suspend  the  operation  of  the  Constitution 
in  any  territory  after  it  has  come  under  the  sovereign  authority 
of  the  United  States,  nor,  by  any  affirmative  enactment,  or 
by  mere  non-action,  can  Congress  prevent  the  Constitution 
from  being  the  supreme  law  for  any  peoples  subject  to  the  juris- 
diction of  the  United  States. 

The  power  conferred  upon  Congress  to  make  needful  rules 
and  regulations  respecting  the  Territories  of  the  United  States 
does  not  authorize  Congress  to  make  any  rule  or  regulation 
inconsistent  with  the  Constitution  or  violative  of  any  right 
secured  by  that  instrument. 

The  proposition  that  a  people  subject  to  the  iuU.  authority 
of  the  United  States  for  purposes  of  government,  may,  under 
any  cricumstances,  or  for  any  period  of  time,  long  or  short,  be 
governed,  as  Congress  pleases  to  ordain,  without  regard  to  the 
Constitution,  is,  in  my  judgment,  inconsistent  with  the  whole 
theory  of  our  institutions. 

If  the  Constitution  does  not  become  the  supreme  law  in  a 
Territory  acquired  by  treaty,  and  whose  inhabitants  are  under 
the  dominion  of  the  United  States,  until  Congress,  in  some  dis- 
tinct form,  shall  have  expressed  its  will  to  that  effect,  it  would 
necessarily  follow  that,  by  positive  enactment,  or  simply  by 
non-action,  Congress,  under  the  theory  of  "  incorporation," 
and  although  a  mere  creature  of  the  Constitution,  could  forever 
withhold  from  the  inhabitants  of  such  Territory  the  benefit  of 
the  guaranties  of  life,  liberty  and  property  as  set  forth  in  the 


WILSON   V.    SHAW,    SECRETARY   OF   THE   TREASURY,  259 

Constitution.  I  cannot  assent  to  any  such  doctrine.  I  cannot 
agree  that  the  supremacy  of  the  Constitution  depends  upon  the 
will  of  Congress.  .  .  . 

Brown,  J.,  concurring. 

I  am  disposed  to  concur  in  the  conclusion  of  the  court  upon 
the  ground  that,  by  the  treaty  of  cession  with  Russia,  it  was 
provided  that  "  the  inhabitants  of  the  ceded  territory  shall  be 
admitted  to  enjoy  all  the  rights,  advantages  and  immunities 
of  citizens  of  the  United  States;  and  shall  be  maintained  and 
protected  in  the  free  enjoyment  of  their  liberty,  property  and 
religion."  I  am  inclined  to  think,  though  with  some  doubt, 
that  those  words  include  a  right  to  a  trial  by  a  jury,  as  under- 
stood among  us  from  the  adoption  of  the  Constitution.  .  .  . 


WILSON  V.   SHAW,  Secretary  of  the  Treasury. 
Supreme  Court  of  the  United  States.     1907. 

[204  United  States,  24.]  i 

Appeal  from  the  Court  of  Appeals  of  the  District  of  Columbia. 

Suit  was  brought  in  the  Supreme  Court  of  the  District  of  Co- 
lumbia by  a  citizen  of  Illinois,  subject  to  taxation  by  the  United 
States,  to  restrain  the  Secretary  of  the  Treasury  from  borrowing 
or  paying  out  money  for  the  purpose  of  acquiring  or  constructing 
or  operating  the  Panama  Canal.  The  bill  was  dismissed  on 
demurrer.  The  Court  of  Appeals  affirmed  the  decree.  There- 
upon this  appeal  was  taken. 

Warren  B.  Wilson,  pro  se ;  and  Russell,  Assistant  Attorney 
General,  and  others,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

If  the  bill  was  only  to  restrain  the  Secretary  of  the  Treasury 
from  paying  the  specific  sums  named  therein,  to  wit,  $40,000,000 
to  the  Panama  Canal  Company,  and  $10,000,000  to  the  Republic 
of  Panama,  it  would  be  sufficient  to  note  the  fact,  of  which  we 
may  take  judicial  notice,  that  those  payments  have  been  made 
and  that  whether  they  were  rightfully  made  or  not  is,  so  far  as 

^  The  statement  has  not  been  reprinted.  —  Ed. 


260  DISTRICT   OF   COLUMBIA,    ETC. 

this  suit  is  concerned,  a  moot  question.  Cheong  Ah  Moy  v. 
United  States,  113  U.  S.  216;  Mills  v.  Green,  159  U.  S.  651; 
American  Book  Company  v.  Kansas,  193  U.  S.  49;  Jones  v. 
Montague,  194  U.  S.  147. 

But  the  bill  goes  further  and  seeks  to  restrain  the  Secretary 
from  paying  out  money  for  the  construction  of  the  canal,  from 
borrowing  money  for  that  purpose  and  issuing  bonds  of  the 
United  States  therefor.  In  other  words,  the  plaintiff  invokes 
the  aid  of  the  courts  to  stop  the  Government  of  the  United  States 
from  carrying  into  execution  its  declared  purpose  of  constructing 
the  Panama  Canal.  .  .  .  Panama  has  seceded  from  the  Re- 
public of  Colombia  and  established  a  new  republic  which  has 
been  recognized  by  other  nations.  This  new  republic  has  by 
treaty  granted  to  the  United  States  rights,, territorial  and  other- 
wise. Acts  of  Congress  have  been  passed  providing  for  the 
construction  of  a  canal,  and  in  many  ways  the  executive  and 
legislative  departments  of  the  Government  have  committed  the 
United  States  to  this  work,  and  it  is  now  progressing.  For  the 
courts  to  interfere  and  at  the  instance  of  a  citizen,  who  does  not 
disclose  the  amount  of  his  interest,  stay  the  work  of  construction 
by  stopping  the  payment  of  money  from  the  Treasury  of  the 
United  States  therefor,  would  be  an  exercise  of  judicial  power 
which,  to  say  the  least,  is  novel  and  extraordinary. 

Many  objections  may  be  raised  to  the  bill.  Among  them 
are  these:  Does  plaintiff  show  sufficient  pecuniary  interest  in 
the  subject  matter  ?  Is  not  the  suit  really  one  against  the 
Government,  which  has  not  consented  to  be  sued  ?  Is  it  any 
more  than  an  appeal  to  the  courts  for  the  exercise  of  govern- 
mental powers  which  belong  exclusively  to  Congress  ?  We  do 
not  stop  to  consider  these  or  kindred  objections;  yet,  passing 
them  in  silence  must  not  be  taken  as  even  an  implied  ruling 
against  their  sufficiency.  We  prefer  to  rest  our  decision  on 
the  general  scope  of  the  bill. 

Clearly  there  is  no  merit  in  plaintiff's  contentions.  That, 
generally  speaking,  a  citizen  may  be  protected  against  wrongful 
acts  of  the  Government  affecting  him  or  his  property  may  be 
conceded.  That  his  remedy  is  by  injunction  does  not  follow. 
A  suit  for  an  injunction  is  an  equitable  proceeding,  and  the 
interests  of  the  defendant  are  to  be  considered  as  well  as  those 
of  the  plaintiff.  Ordinarily  it  will  not  be  granted  when  there  is 
adequate  protection  at  law.      In  the  case  at  bar  it  is  clear  not 


WILSON   V.    SHAW,    SECRETARY   OF  THE   TREASURY.  261 

only  that  plaintiff  is  not  entitled  to  an  injunction,  but  also  that 
he  presents  no  ground  for  any  relief. 

He  contends  that  whatever  title  the  Government  has  was 
not  acquired  as  provided  in  the  act  of  June  28,  1902,  by  treaty 
with  the  Republic  of  Colombia.  A  short  but  sufficient  answer 
is  that  subsequent  ratification  is  equivalent  to  original  authority. 
The  title  to  what  may  be  called  the  Isthmian  or  Canal  Zone, 
which  at  the  date  of  the  act  was  in  the  Republic  of  Colombia, 
passed  by  an  act  of  secession  to  the  newly  formed  Republic  of 
Panama.  The  latter  was  recognized  as  a  nation  by  the  Presi- 
dent. A  treaty  with  it,  ceding  the  Canal  Zone,  was  duly  ratified. 
33  Stat.  2234.  Congress  has  passed  several  acts  based  upon  the 
title  of  the  United  States,  among  them  one  to  provide  a  tempo- 
rary government,  33  Stat.  429;  another  fixing  the  status  of  mer- 
chandise coming  into  the  United  States  from  the  Canal  Zone, 
33  Stat.  843;  another,  prescribing  the  type  of  canal,  34  Stat.  611. 
These  show  a  full  ratification  by  Congress  of  what  has  been  done 
by  the  Executive.  Their  concurrent  action  is  conclusive  upon 
the  courts.  We  have  no  supervising  control  over  the  political 
branch  of  the  Government  in  its  action  within  the  limits  of  the 
Constitution.  Jones  v.  United  States,  137  U.  S.  202,  and  cases 
cited  in  the  opinion;  In  re  Cooper,  143  U.  S.  472,  499,  503.  .  .  . 

Another  contention,  in  support  of  which  plaintiff  has  pre- 
sented a  voluminous  argument,  is  that  the  United  States  has 
no  power  to  engage  in  the  work  of  digging  this  canal.  His  first 
proposition  is  that  the  Canal  Zone  is  no  part  of  the  territory  of 
the  United  States,  and  that,  therefore,  the  Government  is  power- 
less to  do  anything  of  the  kind  therein.  Article  2  of  the  treaty, 
heretofore  referred  to,  "  grants  to  the  United  States  in  perpetuity 
the  use,  occupation  and  control  of  a  zone  of  land  and  land  under 
water  for  the  construction,  maintenance,  operation,  sanitation, 
and  protection  of  said  canal."  By  article  3,  Panama  "  grants 
to  the  United  States  all  the  rights,  power  and  authority  within 
the  zone  mentioned  and  described  in  article  2  of  this  agreement, 
.  .  .  which  the  United  States  would  possess  and  exercise  if  it 
were  the  sovereign  of  the  territory  within  which  said  lands  and 
waters  are  located,  to  the  entire  exclusion  of  the  exercise  by  the 
Republic  of  Panama  of  any  such  sovereign  rights,  power  or 
authority." 

Other  provisions  of  the  treaty  add  to  the  grants  named  in 
these  two  articles  further  guaranties  of  exclusive  rights  of  the 
United  States  in  the  construction  and  maintenance  of  this  canal. 


262  DISTRICT   OF    COLUMBIA,    ETC. 

It  is  hypercritical  to  contend  that  the  title  of  the  United  States 
is  imperfect,  and  that  the  territory  described  does  not  belong 
to  this  Nation,  because  of  the  omission  of  some  of  the  technical 
terms  used  in  ordinary  conveyances  of  real  estate. 

Further,  it  is  said  that  the  boundaries  of  the  zone  are  not 
described  in  the  treaty;  but  the  description  is  sufficient  for 
identification,  and  it  has  been  practically  identified  by  the  con- 
current action  of  the  two  nations  alone  interested  in  the  mat- 
ter. ... 

Again,  plaintiff  contends  that  the  Government  has  no  power 
to  engage  anywhere  in  the  work  of  constructing  a  railroad  or 
canal.  The  decisions  of  this  court  are  adverse  to  this  conten- 
tion.* .  .  . 

Authorities  recognize  the  power  of  Congress  to  construct 
interstate  highways.  A  fortiori,  Congress  would  have  like 
power  within  the  Territories  and  outside  of  state  lines,  for  there 
the  legislative  power  of  Congress  is  limited  only  by  the  provisions 
of  the  Constitution,  and  cannot  conflict  with  the  reserved  power 
of  the  States.  .  .  .  Affirmed. 


KAWANANAKOA  v.   POLYBLANK. 

Supreme  Court  of  the  United  States.     1907. 
[205  United  States,  349.] 

Appeal  from  the  Supreme  Court  of  the  Territory  of  Hawaii. 

The  facts  are  stated  in  the  opinion. 

Sidney  M.  Ballou,  for  appellant;  and  Aldis  B.  Browne  and  others, 
contra. 

Holmes,  J.,  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  affirming  a  decree  of  foreclos- 
ure and  sale  under  a  mortgage  executed  by  the  appellants  to 
the  appellee.  Sister  Albertina.  17  Hawaii,  82.  The  defendants 
(appellants)  pleaded  to  the  jurisdiction  that  after  the  execution 
of  the  mortgage  a  part  of  the  mortgaged  land  had  been  conveyed 

1  Here  were  cited  California  v.  Pacific  R.  Co.,  127  U.  S.  1,  39  (1888), 
Luxton  V.  North  River  Bridge  Co.,  153  U.  S.  525,  529  (1894),  and  Monon- 
gahela  Navigation  Co.  v.  United  States,  148  U.  S.  312  (1893).  —  Ed. 


KAWANANAKOA  V.    POLYBLANK.  263 

by  them  to  one  Damon,  and  by  Damon  to  the  Territory  of 
Hawaii,  and  was  now  part  of  a  pubhc  street.  The  bill  origi- 
nally made  the  Territory  a  party,  but  the  Territory  demurred 
and  the  plaintiffs  dismissed  their  bill  as  to  it  before  the  above 
plea  was  argued.  Then  the  plea  was  overruled,  and  after  answer 
and  hearing  the  decree  of  foreclosure  was  made,  the  appellants 
having  saved  their  rights.  The  decree  excepted  from  the  sale 
the  land  conveyed  to  the  Territory  and  directed  a  judgment  for 
the  sum  remaining  due  in  case  the  proceeds  of  the  sale  were 
insufficient  to  pay  the  debt.     Eq.  Rule  92. 

The  appellants  contend  that  the  owners  of  the  equity  of  re- 
demption in  all  parts  of  the  mortgage  land  must  be  joined,  and 
that  no  deficiency  judgment  should  be  entered  until  all  the 
mortgaged  premises  have  been  sold.  In  aid  of  their  contention 
they  argue  that  the  Territory  of  Hawaii  is  liable  to  suit  like  a 
municipal  corporation,  irrespective  of  the  permission  given  by 
its  statutes,  which  does  not  extend  to  this  case.  They  liken 
the  Territory  to  the  District  of  Columbia,  Metropolitan  R.  R. 
Co.  V.  District  of  Columbia,  132  U.  S.  1,  and  point  out  that  it 
has  been  a  party  to  suits  that  have  been  before  this  court.  Da- 
mon V.  Hawaii,  194  U.  S.  154;  Carter  v.  Hawaii,  200  U.  S.  255. 

The  Territory,  of  course,  could  waive  its  exemption.  Smith 
V.  Reeves,  178  U.  S.  436,  and  it  took  no  objection  to  the  pro- 
ceedings in  the  cases  cited  if  it  could  have  done  so.  See  Act 
of  April  30,  1900,  c.  339,  §  96;  31  Stat.  141,  160.  But  in  the 
case  at  bar  it  did  object,  and  the  question  raised  is  whether 
the  plaintiffs  were  bound  to  yield.  Some  doubts  have  been 
expressed  as  to  the  source  of  the  immunity  of  a  sovereign  power 
from  suit  without  its  own  permission,  but  the  answer  has  been 
public  property  since  before  the  days  of  Hobbes.  (Leviathan, 
c.  26,  2.)  A  sovereign  is  exempt  from  suit,  not  because  of  any 
formal  conception  or  obsolete  theory,  but  on  the  logical  and 
practical  ground  that  there  can  be  no  legal  right  as  against  the 
authority  that  makes  the  law  on  which  the  right  depends.  "  Car 
on  pent  bien  recevoir  loy  d'autruy,  mats  il  est  impossible  par  nature 
de  se  donner  loy."  Bodin,  Republique,  1,  c.  8.  Ed.  1629,  p.  132. 
Sir  John  Eliot,  De  Jure  Maiestatis,  c.  3.  Nemo  suo  statuto  ligatur 
necessitaiive.  Baldus.,  De  Leg.  et  Const.,  Digna  Vox  (2d  ed., 
1496,  fol.  51b.  Ed.  1539,  fol.  61). 

As  the  ground  is  thus  logical  and  practical,  the  doctrine  is 
not  confined  to  powers  that  are  sovereign  in  the  full  sense  of 
juridical  theory,  but  naturally  is  extended  to  those  that  in  actual 


264  DISTRICT   OF   COLUMBIA,   ETC. 

administration  originate  and  change  at  their  will  the  law  of 
contract  and  property,  from  which  persons  within  the  jurisdic- 
tion derive  their  rights.  A  suit  presupposes  that  the  defendants 
are  subject  to  the  law  invoked.  Of  course  it  cannot  be  main- 
tained unless  they  are  so.  But  that  is  not  the  case  with  a  terri- 
tory of  the  United  States,  because  the  Territory  itself  is  the 
fountain  from  which  rights  ordinarily  flow.  It  is  true  that 
Congress  might  intervene,  just  as  in  the  case  of  a  State  the  Con- 
stitution does,  and  the  power  that  can  alter  the  Constitution 
might.  But  the  rights  that  exist  are  not  created  by  Congress 
or  the  Constitution,  except  to  the  extent  of  certain  limitations 
of  power.  The  District  of  Columbia  is  different,  because  there 
the  body  of  private  rights  is  created  and  controlled  by  Congress 
and  not  by  a  legislature  of  the  District.  But  for  the  Territory  of 
Hawaii  it  is  enough  to  refer  to  the  organic  act.  Act  of  April  30, 
1900,  c.  339,  §§  6,  55;  31  Stat.  141,  142,  150;  Coffield  v.  Hawaii, 
13  Hawaii,  478.  See  further  Territory  of  Wisconsin  v.  Doty, 
1  Pinney,  396,  405;  Langford  v.  King,  1  Montana,  33;  Fisk  v. 
Cuthbert,  2  Montana,  593,  598. 

However  it  might  be  in  a  different  case,  when  the  inability 
to  join  all  parties  and  to  sell  all  the  land  is  due  to  a  conveyance 
by  the  mortgagor  directly  or  indirectly  to  the  Territory  the 
court  is  not  thereby  deprived  of  ability  to  proceed. 

Decree  affirmed. 

Harlan,  J.,  concurs  in  the  result. 


SANTIAGO   V.   NOGUERAS.  265 

SANTIAGO  V.   NOGUERAS. 
Supreme  Court  of  the  United  States.     1909. 

[214  United  States,  260.] 

Error  to  the  District  Court  of  the  United  States  for  Porto 
Rico. 

The  facts  are  stated  in  the  opinion. 

Francis  H.  Dexter,  for  plaintiffs  in  error;  and  Charles  Hartzell 
and  Manuel  Rodriguez-Serra,  contra. 

Moody,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiffs  in  error  brought  in  the  District  Court  of  the 
United  States  for  Porto  Rico  an  action  for  the  recovery  of  cer- 
tain parcels  of  land  held  by  the  defendants  in  error.  There  was 
judgment  for  the  defendants  in  the  court  below,  and  the  case 
is  here  upon  writ  of  error.  .  .  . 

One  of  the  plaintiffs  once  owned  the  lands  in  dispute,  but 
they  were  sold  upon  an  execution  issued  upon  a  judgment 
rendered  against  him  by  the  United  States  Provisional  Court. 
The  defendants,  by  mesne  conveyances,  hold  the  title  con- 
veyed by  the  execution  sale.  The  plaintiffs  attack  that  title 
solely  upon  the  grounds  that  the  United  States  Provisional 
Court  had  no  lawful  existence,  and  if  lawfully  constituted  was 
entirely  without  jurisdiction  to  render  the  judgment  which  it 
did,  and  that  for  the  one  reason  or  the  other  the  judgment  is  a 
nullity  everywhere. 

The  ratifications  of  the  treaty  of  peace  by  which  Porto  Rico 
was  ceded  to  the  United  States  were  exchanged  April  11,  1899. 
30  Stat.  1754.  The  act  of  Congress  establishing  a  civil  govern- 
ment in  Porto  Rico,  passed  April  12,  1900,  31  Stat.  77,  c.  191, 
took  effect  on  May  1  of  that  year.  Between  these  two  dates, 
on  June  27,  1899,  the  United  States  Provisional  Court,  here  in 
question,  was  established  by  military  authority,  with  the  ap- 
proval of  the  President,  by  General  Order,  No.  88,  series  of 
1899.  .  .  . 

At  the  tine  this  order  was  issued  peace  prevailed  in  Porto 
Rico  and  the  courts  established  under  Spanish  sovereignty  were 
open. 

The  plaintiffs  contend  that  the  military  power,  acting  by  the 
authority  of  the  President  as  Commander-in-Chief,  does  not 
warrant  the  creation  of  the  United  States  Provisional  Court. 


266  DISTRICT   OF   COLUMBIA,    ETC. 

By  the  ratifications  of  the  treaty  of  peace,  Porto  Rico  ceased 
to  be  subject  to  the  crown  of  Spain  and  became  subject  to  the 
legislative  power  of  Congress.  But  the  civil  government  of  the 
United  States  cannot  extend  immediately  and  of  its  own  force 
over  conquered  and  ceded  territory.  Theoretically,  Congress 
might  prepare  and  enact  a  scheme  of  civil  government  to  take 
effect  immediately  upon  the  cession,  but,  practically,  there 
always  have  been  delays  and  always  will  be.  Time  is  required 
for  a  study  of  the  situation  and  for  the  maturing  and  enacting 
of  an  adequate  scheme  of  civil  government.  In  the  meantime, 
pending  the  action  of  Congress,  there  is  no  civil  power  under 
our  system  of  government,  not  even  that  of  the  President  as 
civil  executive,  which  can  take  the  place  of  the  government 
which  has  ceased  to  exist  by  the  cession.  Is  it  possible  that, 
under  such  circumstances,  there  must  be  an  interregnum  ?  We 
think  clearly  not.  The  authority  to  govern  such  ceded  terri- 
tory is  found  in  the  laws  applicable  to  conquest  and  cession. 
That  authority  is  the  military  power,  under  the  control  of  the 
President  as  Commander-in-Chief.^  .  .  . 

But  whatever  may  be  the  limits  of  the  military  power,  it  cer- 
tainly must  include  the  authority  to  establish  courts  of  justice, 
which  are  so  essential  a  part  of  government.  .  .  .  With  this 
thought  in  mind,  the  military  power  not  only  established  this 
particular  court  in  Porto  Rico,  but  as  well  a  system  of  courts, 
which  took  the  place  of  the  courts  under  Spanish  sovereignty, 
and  were  continued  by  the  organic  act.  The  same  course  was 
pursued  in  the  Philippine  Islands. 

By  §  34  of  the  organic  act  (31  Stat.  77),  a  District  Court  of 
the  United  States  for  Porto  Rico  was  created,  and  it  was  pro- 
vided that  the  same  "  shall  be  the  successor  to  the  United  States 
provisional  court  estabhshed  by  General  Orders  numbered  Eighty- 
eight,  promulgated  by  Brigadier  General  Davis,  United  States 
Volunteers,  and  shall  take  possession  of  all  records  of  that  Court, 
and  take  jurisdiction  of  all  cases  and  proceedings  pending  therein, 
and  said  United  States  provisional  court  is  hereby  discontinued." 

The  record  shows  that  in  conformity  with  this  provision  the 
newly-created  District  Court  of  the  United  States  for  Porto 
Rico  issued  an  execution  upon  this  judgment  of  the  United 

^  Here  were  cited  Cross  v.  Harrison,  16  How.  164  (1853),  Leitensdorfer  v. 
Webb,  20  How.  176  (1857);  Downes  v.  BidweU,  ante,  p.  229  (1901);  Dooley 
V.  United  States,  182  U.  S.  222  (1901),  and  Lincoln  v.  United  States,  197 
U.S.  419  (1905).  — Ed. 


SANTIAGO   V.   NOGUERAS.  267 

States  Provisional  Court,  and  the  property  was  sold  upon  that 
execution.  .  .  . 

We  are  of  the  opinion  that  the  judgment  of  the  United  States 
Provisional  Court  was  not  a  nullity  and  that  the  sale  on  execu- 
tion, under  which  the  defendants  claim,  conveyed  to  them  a 
good  title.  As  the  court  below  took  the  same  view,  its  judg- 
ment is 

Affirmed. 


iH',  R['jl'j'iAL  iJHKAH/  i-,  .    W 


AA    000  798  406    5 


